Can voters cast negative votes? larger apex court bench to decide

February 23rd, 2009 - 9:52 pm ICT by IANS  

New Delhi, Feb 23 (IANS) Can voters cast “negative votes” during an election and reject all the candidates in the fray? The Supreme Court Monday referred a lawsuit on the matter to a larger constitution bench, saying the issue was crucial for democracy.
A bench of Justice B.N. Agrawal and Justice G.S. Singhvi said it needs to be examined if the voters’ right to exercise his franchise is also linked to the Fundamental Right to freedom of speech and expression.

Recommending examination of the matter by the constitution bench, the judges said that the matter be placed before Chief Justice K.G. Balakrishnan.

The suit was filed in 2004 by the People’s Union for Civil Liberties, seeking provision of NOTA or negative-voting option in ballot papers and electronic voting machines.

The lawsuit was also supported by the Election Commission, which has for long been seeking modification of the voting machines to enable people to cast negative votes rejecting all the candidates from a particular constituency.

The PUCL, along with a DMK parliamentarian Era Sezhiyan, had approached the court contending that voters have a sovereign right to express their choice of candidates and that right also includes the right to vote in secrecy and the right to reject candidates.

The bench had reserved its verdict on the issue Jan 29 amid the predicament on whether voters at all have a “fundamental right” to vote, akin to the fundamental right to life, or was the right to vote just a constitutional or statutory right.

The bench reserved the judgement wondering that in case the right to vote is not a fundamental right, then shouldn’t the lawsuit be dismissed?

This was because the petitioner PUCL had filed the lawsuit demanding facility to cast negative votes under article 32 of the Constitution, invoking violation of fundamental rights as the ground for moving the apex court.

But the apex court cannot be approached directly unless there is violation of fundamental rights.

Owing to some other rulings of the apex court’s larger benches, the bench was of the view that the right to vote was merely a statutory right and not a fundamental right.

Conceding the bench’s observation that right to vote was not a fundamental right but just a constitutional right, Election Commission counsel Meenakshi Arora had argued that “the right to vote was fundamental to the democracy of the country, which is the basic structure of the constitution”, and accordingly has been placed on a footing equivalent with the fundamental right.

In support, Arora quoted from a 2002 ruling of the apex court, which had granted Indian voters the right to know the credentials of the candidates in the fray, including their possible criminal antecedents and educational qualifications besides their financial assets and liabilities.

Arora had argued that the apex court’s 2002 ruling held that the act of voting is akin to voters’ expression to choose a candidate and forms part of the fundamental right of freedom of speech and expression.

One of the judges echoed Arora’s argument, saying: “Voting is a form of expression of will or opinion of the person voting in the election.”

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