Voters to enjoy secrecy via ‘none of the above’ option

Thanks to the Supreme Court’s decision in People’s Union for Civil Liberties & anr v Union of India & anr, every voter in India can now exercise their right not to vote while at the same time maintaining their secrecy. The court directed the election commission to provide a “none of the above” (NOTA) option on every ballot paper and a NOTA button on every electronic voting machine.

Previously, voters who wished to exercise their right not to vote for any of the candidates had to state their intention to the presiding officer who would in turn enter a remark to that effect on a prescribed form and obtain the voter’s signature and thumb impression against such remark, thus violating the voter’s right to keep their vote secret. This procedure also violated the voter’s right to exercise their right not to vote in secrecy, which is recognized by rules 41 and 49-O under the Representation of the People Act, 1951 (RP Act), and is part of the voter’s freedom of expression.

Facts

Through a writ petition under article 32 of the constitution of India, the petitioners challenged rules 41(2) & (3) of the RP Act, on the grounds that secrecy is an essential feature of “free and fair elections” and the rules violate the requirement of secrecy.

Counsel for the government argued that the right to vote was neither a fundamental right nor a constitutional right but a statutory right and therefore the writ petition was not maintainable. He cited case law which established that the right to vote is essentially a statutory right and not a fundamental one and contended that the right to secrecy has been extended only to voters who exercise their right to vote and the same cannot be extended to those who have chosen not to vote.

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Zeus Dhanbhoora is an associate.