J 56 Jili 2014 25 20200220 190159

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56 JILI (2014) 25
Citizen's Right to Vote: Role of the Supreme Court in Empowering Citizenry to

Bring about 'A Systemic Change' Through Nota for Cleansing Our Body Politic
(A Juristic Critique of Constitutional Developments)
CITIZEN'S RIGHT TO VOTE: ROLE OF THE SUPREME COURT IN EMPOWERING CITIZENRY

TO BRING ABOUT ‘A SYSTEMIC CHANGE’ T HROUGH NOTA FOR CLEANSING OUR BODY
POLITIC (A JURISTIC CRITIQUE OF CONSTITUTIONAL DEVELOPMENTS)*
by
Virendra Kumar**
ABSTRACT
The thrust of the paper is to show how citizenry could be empowered to cleanse our
body politic through the judicial exploration of constitutional nature and ambit of their
right to vote. In this juristic analysis of the decisions of the Supreme Court the paper
has raised such basic questions as how come, if the right to vote has been with us
since the very inception of the Constitution and yet it took us more than fifty or sixty
years even to raise the question and ask, whether a citizen in the exercise of his right
to vote has the right to know the antecedents of the election candidates, and whether
in the exercise of that right he has also the right to reject the candidate without losing
his right to secrecy about his rejection-preference.
By arresting the deviating approach to the exploration constitutional dimensions of the
right to vote, the paper has ventured to suggest that the thrust of developmental
approach, on the whole, paves the way for the next progressive phase in which ‘the
right to vote’ would eventually include within its ambit ‘the right to re-call’ on the
basis of a simple axiomatic premise that the ‘right to do’ inheres the ‘right to undo’.
This would, in turn, accentuate the process of systemic change at least with two
evident advantages. One, the right to recall would avoid the waiting agony for full five
years in getting rid of those who are found indulging in corrupt and criminal practices
by misusing their power and position. Two, they would be accountable to the
electorates on continual basis, leaving little time and space for them to have recourse
to manipulative practices, say, for amassing huge wealth through corrupt means.
The critique has eventually led the author to prompt the Parliament for proper
legislation, followed by periodic ‘Re-statement of the whole gamut of law’, which
would admirably accelerate the whole process of systemic change for cleansing our
body politic by strengthening the rule of law.
I Introduction
RIGHT TO vote is perhaps the simple most right. As such it is known to every
citizen. And yet the inherent value of this right still remains unexplored and unknown.
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May be due to unknown value of this right, the percentage of voters actually visiting
the polling booth to cast their votes is not very encouraging.1 With a view to
strengthening the functioning of democratic system of government, the intrinsic value
of the right to vote in terms of its nature and ambit is required to be constitutionally
explored, understood and appreciated. This would, in turn, prompt the citizens to go to
the polling booth and not just to vote but exercise their right to elect their
representatives in the light of their judgment. The right to vote could be usefully
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invoked and applied in making various political arrangements truly functional and
thereby provide impetus to the democratic system of governance. The masses are
required to be encouraged to participate and exercise their right to vote in the first
instance.2 This indeed was the message of President of India to the nation on the eve
of 65th Republic Day when he said that “each one of us is a voter and has a
responsibility. We cannot let India down. It is time for introspection and action… 2014
should also become the year of healing after fractured and contentious politics of the
past few years….” “Fractured government can prove catastrophic,” cautioned the
President, for such a regime is “held hostage to whimsical opportunists”.3 With the
increasing participation of citizens, the possibility of a ‘fractured’ mandate is
considerably reduced, because, notwithstanding illiteracy coupled with poverty of the
large section of our population, their collective vision of a relative good government
they would like to have cannot be faulted.
II Exploration of constitutional values

How do we explore the constitutional dimensions of the nature and ambit of the
citizen's right to vote? This is done primarily and essentially through the
instrumentality of the Supreme Court, which is constitutionally empowered to state
authoritatively, what the Constitution is or what does it say on counts of nature and
ambit of this right. In this respect, one may bear in mind the clear and categorical
mandate contained in article 141 of the Constitution:
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The law declared by the Supreme Court shall be binding on all courts within the
territory of India. How does the Supreme Court declare the law? The Supreme Court is
not the legislator. The law making function strictly and properly belongs to the
legislature. Making and declaring that law become manifest through the statute
enacted by the legislature. However, this law, the statutory law, in turn, under the
constitutional system of government must be in accordance with the provisions and
principles laid down in the Constitution. The authoritative statement in a conflict
situation whether or not the enacted law is in consonance with the constitutional
mandate is eventually made by the apex court. This is how the Supreme Court comes
into play.
The Supreme Court, thus, declares ‘the law’ only contextually, and that law is to be
deciphered in the form of, what is termed as, ‘ratio decidendi’—the underlying
principle-basis of the decision — as distinguished from ‘obiter dictum” that is an
observation made by the court just by the way, which is not necessary for deciding the
case in hand; it is something hypothetical in nature.
In this context, there is yet another cognate question that needs answering:
Whether the law declared by the Supreme Court also binds the other organs of the
state, namely, the legislature and the executive. Such a question is relevant to ask,
because article 141 makes a reference only to the courts in India that are bound by
the Supreme Court-declared-law
The answer is in the affirmative. The law declared by the Supreme Court is equally
binding on the legislature and the executive, because in case of conflict situation
presented before the court, the court shall resolve the issue as per the declaration of
the Supreme Court, and not according to the understanding and interpretation of the
law by them — by the Parliament or the executive.
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Thus, the whole process of declaring the law, by reason of being highly contextual,
and its deduction being inferential, is quite complex. But, nevertheless,
notwithstanding this complexity, such law continues to be of immense functional
importance. It brings out the newer nuances in the course of resolution of concrete
conflict situations and thereby reflecting upon its nature and widening ambit. This
necessitates the continuing critical or juridical examination of the emerging body of
judicial legislation!
Bearing this background in mind, the issue of constitutional exploration of the
nature and ambit of the right to vote by the Supreme Court may be explored.
III Contextual prepositions for constitutional exploration
The occasion to explore the nature and ambit of the right to vote arose in a
precipitated form for the first time when the Supreme Court was required to answer a
conflict situation, which revolved around two propositions:
First contextual proposition: ‘Whether the citizen's right to vote includes within its
ambit his right to know the background of the election candidates, including
particularly
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if they bore any blemished record, such as criminal background.’ The occasional
opportunity to raise this proposition arose before the apex court in the year 2002-2003
in two successive cases, Union of India v. Assn. for Democratic Reforms,4 and People's
Union for Civil Liberties v. Union of India.5
In order to understand the value of this proposition to be expounded by the

Supreme Court, one needs to ask at least two exploratory questions. One, why it took
more than fifty years even to ask this question, namely, whether a citizen in the
exercise of his right to vote has the right to know the background of the election
candidates? How has he been hitherto casting his vote, say, during the last fifteen Lok
Sabha elections? How did he exercise his right to vote in the last more than 50 state
assembly elections? It seems the citizens have been casting their vote without really
exercising their right to franchise!
The second exploratory question is: what happened around the years 2002-2003
that encouraged the citizens to raise the said pointed proposition the way it had come
to the fore? In this respect, the author has been able to identify and crystallize at least
two factors that seemed to have prompted the citizens.
The first factor as background consideration of the proposition was and continues to
be the mounting societal concern about, what is pithily described as, increasing
“criminalization of politics”. The shrieking account of such a sad state of affairs is
found in the Report of the Vohra Committee (1993).6 To show the dismal picture, the
author extracts an account from the Report given by the Director, Intelligence Bureau,
revealing the nature and extent of proliferation of criminal gangs into our body politic:7
In certain States like Bihar, Haryana and UP, these [criminal] gangs enjoy the
patronage of local politicians, cutting across party lines, and the protection of
Governmental functionaries. Some political leaders become
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the leaders of these gangs, armed senas and over the years get themselves elected to
local bodies, State assemblies and the national parliament. Resultantly, such elements
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have acquired considerable political clout, seriously jeopardizing the smooth
functioning of the administration and the safety of life and property of the common
man, causing a sense of despair and alienation among the people.
The report was submitted to the government in October 1993, that is, within a
stipulated period of less than four months. However, that report remained secret and
dormant till it was placed on the table of Parliament in 1995. The occasion for doing so
arose in the wake of a murder of a known political activist Naina Sahani in July 1995,
when one of the persons arrested happened to be an active politician who had held
important political posts, and the national press published a series of reports and
articles on the criminalization of politics within the country, and the growing links
between political leaders and mafia members.
The report was debated fiercely in the Lok Sabha. One of the MPs, Dinesh Trivedi,
who participated in the debate, wanted the full disclosure of the report along with all
the related documents. When he did not succeed to get the requisite response from
the government, he moved the Supreme Court, which resulted in the decision, Dinesh
Trivedi v. Union of India.8
Although, as a matter of course the need of disclosures made before the committee
that resulted in preparing the said report was recognized, and yet the Supreme Court
refused to compel the government to make such disclosure in the instant case keeping
in view the limited objective of the report. Nevertheless, in the normal course, as a
matter of principle, stated the Supreme Court, withholding of information would
amount to violation of the citizen's right to freedom of information.9 “[I]n modern
constitutional democracies,” said the Supreme Court, “it is axiomatic that citizens
have a right to know about the affairs of the Government, which, having been elected
by them, seek to formulate sound policies of governance aimed at their welfare.”10 In
short, the court added that “democracy expects openness and openness is
concomitant of a free society and the sunlight is a best disinfectant”.11 This response
of the constitutional import must have encouraged the citizen to raise the said
propositional question.
The second factor as background-consideration is in respect of the 170th Report of
the Law Commission of India on Electoral Reforms (1999). This report, inter alia, made
three recommendations:
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One, debarring candidates from contesting elections if charges were framed against
them by a court in respect of certain offences.
Two, directing the election candidates to furnish details regarding criminal cases, if
any, pending against them in courts.
Three, requiring the election candidates to file a true and correct statement of
assets owned by them or their spouses and dependant relations.
None of those recommendations were implemented by the government as a
measure of electoral reforms. The non-implementation of these recommendations
must have also prompted the citizen to pursue his right by invoking the judicial
processes.
In this backdrop, the critical question before the apex court in Association for
Democratic Reforms--2002 was, how should they meaningfully answer the conflict
problem involving the proposition whether the citizen's right to vote include within its
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ambit the right to know the background of the election candidates, including
particularly if they bore any blemished past. Since on the face of it, the right to know
the antecedent of the election candidate seems to be fundamental to the exercise of
the right to vote, the three-judge bench of the Supreme Court for deciding the matter
judicially desired the respondent government — Union of India — to tell the bench,
why in the exercise of his right to vote, a citizen shouldn't have the right to know the
antecedents of the election candidate, and, correspondingly, why shouldn't an election
candidate be under a duty to reveal his past history, including the blemished record, if
any. The response of the government, as reflected through the statement made by the
Solicitor General, amounted to convey: ‘A citizen in the exercise of his right to vote is
entitled to know about the election candidate only on counts on which and the extent
to which the State itself permits him to know by way of laying down the qualifications
for standing at an election, and until or unless the State itself considers desirable to
add anything to what is already given, the citizens have no right to ask anything more
on this count.’ In support of this stand, the Solicitor General made specific reference
to the provisions of section 8 of the Representation of the People Act of 1951 that
provides for disqualification on conviction for certain offences, and section 8A that
provides for disqualification on ground of corrupt practices. The sum and substance of
the whole argument was that it is the Parliament, and the Parliament alone, and not
the court, who is the sole authority to determine what is required to be revealed for
enabling the citizen to exercise his right to vote.
The clear stand of the government before the Supreme Court in Association for
Democratic Reforms—2002, therefore, amounted to saying summarily: A citizen
cannot claim to know the antecedents of an election candidate more than what the
state has revealed to him in terms of clearing his nomination to contest the election. It
is this,
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‘thus far, no farther’ approach that led the three-judge bench of the Supreme Court to
examine the proposition de novo. On the basis of their analysis, the apex court
eventually held by negating the stand of the government: The citizen's right to vote
includes within its ambit his right to know the background history of the election
candidates, including particularly if they bore any blemished record, such as criminal
background.
The Union of India strongly resented this decision of the Supreme Court, inasmuch
as it was not in consonance with its policy perspective. It immediately moved to
negate the Supreme Court's decision by promulgating an ordinance12 which was soon
repealed and replaced by the amending Act13 that came into force with retrospective
effect.14 The legislative response of reversal is contained mainly in sections 33-A15 and
33-B16 of the amended Act of 1951.
A bare comparison of the statutory provisions with the directions issued by the
Supreme Court in the case of Association for Democratic Reforms-2002 reveals that
only
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some of the aspects and not all of the right to information raised by the court are
incorporated by the legislature. In fact, the remaining aspects, relating to acquittal or
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discharge in criminal offences, or amassing of assets and incurring liabilities, or
educational attainments, are clearly excluded, for it is specifically stated that no
candidate shall be liable to disclose or furnish any such information which is not
required to be disclosed or furnished under the Act or the rules made thereunder
despite the directions issued by the court on the contrary. In this backdrop, the
provisions of the amending Act that have the effect of limiting the right to information
have been challenged before the three-judge bench of the Supreme Court under
article 32 of the Constitution in Peoples Union for Civil Liberties (2003). In support of
their stand, the government cited the authority propounded by the Supreme Court
itself in its earlier decisions of N.P. Ponnuswami v. Returning Officer17 and Jyoti Basu
v. Debi Ghosal.18 In particular, they quoted the propositional-statement to the effect:19
A right to elect, fundamental though it is to democracy is, anomalously enough,

neither a fundamental right nor a common law right. It is pure and simple a
statutory right.
What does this proposition mean and convey? For the purpose of understanding,
one needs to construe this proposition in the form of three separate statements. First,
the right to vote is not a fundamental right. Second, right to vote is not a common law
right. Third, the right to vote is a statutory right, pure and simple.
The first statement that right to vote is not a fundamental right is seemingly true.
Admittedly it is not a fundamental right in the strict sense of the term, inasmuch as it
is nowhere specifically enumerated in part III of the Constitution in the mode and
manner in which all the fundamental rights, such as fundamental “right to equality
before the law” under article 14, fundamental “right to freedom of speech and
expression”, under article 19, and fundamental “right to education” under article 21A
of the Constitution.
The second statement that right to vote is not a common law right is slightly hazy
or unclear. This is because of the connotation of ‘common law’, which is different from
its literal meaning. Literally construed, it means the law which is common.
Connotatively, however, its meaning is different. Really, it means the principles of law
which had been developed by the courts through the course of centuries, and that
such common law principles were developed on the basis of prevailing customary
practices. We have inherited the expression, ‘common law’, from the English law. In
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this sense, right to vote is certainly not a common law right, because no such
customarily given right existed with us since time immemorial.
The third statement that right to vote is a “statutory right, pure and simple”, thus,
means that the right to vote is given to us by the Parliament through the enactment of
their statute, namely the Representation of the People Act, 1951, and there is no right
outside this statute.
The court, inter alia held:20
Securing information on the basic details concerning the candidates contesting
for elections to Parliament or the State Legislature promotes freedom of expression
and therefore the right to information forms an integral part of Article 19(1)(a). This
right to information is, however, qualitatively different from the right to get
information about public affairs or the right to receive information through the press
and electronic media, though, to a certain extent, there may be overlapping.
The right to vote at the elections to the House of the People or legislative assembly
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is a constitutional right but not merely a statutory right; freedom of voting as distinct
from right to vote is a facet of the fundamental right enshrined in article 19(1)(a). The
casting of vote in favour of one or the other candidate marks the accomplishment of
freedom of expression of the voter.
Section 33-B inserted by the Representation of the People (Third Amendment) Act,
2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a
blanket ban on dissemination of information other than that spelt out in the enactment
irrespective of the need of the hour and the future exigencies and expedients and
secondly, for the reason that the ban operates despite the fact that the disclosure of
information now provided for is deficient and inadequate.
The right to information provided for by Parliament under section 33-A in regard to
the pending criminal cases and past involvement in such cases is reasonably adequate
to safeguard the right to information vested in the voter/citizen. However, there is no
good reason for excluding the pending cases in which cognizance has been taken by
the court from the ambit of disclosure.
This decision of the Supreme Court turned out to the turning point in the history of
constitutional—electoral law in India, because it discovered the new constitutional
dimension of the right to vote, which hitherto remained unexplored for more than fifty
years.21 Henceforth, a citizen, equipped with the antecedents of the election
candidates, would be able to decide if any of the candidates is worthy of his vote.
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However, this alone is not enough. In order to transform the right to vote into a
powerful, potent, weapon in the hands of citizenry to change the face of the body
politic, the need to take the next logical step, which leads the author to the next
contextual proposition.
Second contextual proposition: ‘whether a citizen's right to vote includes within its
ambit the right to reject the candidate without losing his right to secrecy about his
rejection-preference’.
Soon after the three-judge-bench-decisions in Association for Democratic Reforms-
2002, and People's Union for Civil Liberties-2003, a writ petition under article 32 of the
Constitution was filed by People's Union for Civil Liberties22 for determining, as a
logical corollary, whether in the exercise of his right to vote a citizen also has the right
to reject the candidates presented at a given election without losing his right to
secrecy about his rejection-preference. This was done by way of challenging the
constitutional validity of rules 41(2), 41(3) and 49-O of the Conduct of Election Rules,
196123 to the extent these provisions violate the secrecy of voting, which is required to
be maintained as per the provisions of section 128 of the Act 1951 read with rules 39
and 40-M of the said rules of 1961. Besides, disclosure of rejection-preference, it was
further contended, also violates the fundamental right to the freedom of speech and
expression under article 19(1)(a) of the Constitution.
Once the citizen's right to vote was held to include within its ambit the right to
know the antecedents of the election candidates, it should not have been difficult to
logically extend the right to know the antecedents to the right to reject the candidates
if their background revealed that none of them was worthy of his vote. This was the
issue to be decided in People's Union for Civil Liberties v. Union of India24 and which
was eventually decided on September 27, 2013, by three-judge bench consisting of P.
Sathasivam, CJI and Rajana Prakash Desai and Ranjan Gogoi, JJ. But, why it took
about a decade after the writ petition was filed way back in 2004 soon after the two
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three-judge bench decisions in 2002 and 2003 in succession? There is a revealing
history of constitutional development, which explains the delayed-development.
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The writ petition in People's Union for Civil Liberties-2013 was taken up for
consideration after about five years (after its filing in 2004) in the year 2009. In the
meanwhile some intervening development had taken place. In the year 2006 a
judgment of the constitution bench of the Supreme Court appeared in Kuldip Nayar v.
Union of India,25 which made the maintainability of the 2004-writ petition under article
32 of the Constitution somewhat suspect.26 The suspicion was on the ground that the
right to vote, which had attained the status of fundamental right owing to the two 3-
judge bench decisions of the Supreme Court in Association for Democratic Reforms-
2002, and People's Union for Civil Liberties-2003, was having no more that status: it
merely relapsed to the status of a mere ‘statutory right.’ Such an ambivalent position
was taken to mean that though the constitution bench in Kuldip Nayar did not
specifically overrule the ratio in the 3-judge bench decisions of 2002 and 2003, yet it
impliedly overruled those decisions, and, thus, created ‘a doubt’ about the very nature
of the right to vote.
Accordingly, when the writ petition of 2004 initially came up before the Supreme
Court in this case on February 23, 2009, the respondent government took the stand
that writ petition under article 32 was not maintainable before the Supreme Court
inasmuch as no fundamental right had been violated. Pursuant to this preliminary-
plea, the question arose, whether the constitution bench had impliedly overruled the
historic decisions of the two three-judge benches without expressly overruling them.27
Since this stand created “a doubt” on the constitutional count, the matter was referred
to a larger bench of the Supreme Court “to arrive at a decision”.28 This is how the
three-judge bench of the Supreme Court consisting of P. Sathasivam, CJI and Rajana
Prakash Desai and Ranjan Gogoi, JJ was constituted to decide the writ petition in
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People's Union for Civil Liberties-2013 with the following two-fold reference (made on
February 23, 2009):29
(a) Whether there is any doubt or confusion with regard to the nature of “the right
of a voter” in view of the Constitution Bench's decision in Kuldip Nayar.
(b) Whether the Constitution bench's decision in Kuldip Nayar “impliedly overruled”
the judgments in two three-Judge Bench cases of Association for Democratic
Reforms-2002 and People's Union for Civil Liberties-2003.
The three-judge Bench in People's Union for Civil Liberties-2013, in the light of their
own understanding of the ratio of the two said judgments in Association for
Democratic Reforms-2002 and People's Union for Civil Liberties-2003,30 “after a careful
perusal” of the verdict of the constitution bench of the Supreme Court in Kuldip
Nayar,31 concluded: 32
[W]e are of the considered view that Kuldip Nayar does not overrule the other
two decisions, rather it only reaffirms what has already been said by the two
aforesaid decisions. The said paragraphs recognize that right to vote is a statutory
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right and also in People's Union for Civil Liberties-2003 it was held that ‘fine
distinction was drawn between the right to vote and the freedom of voting as a
species of freedom of expression.’ Therefore it cannot be said that Kuldip Nayar has
observed anything to the contrary….
The opening part of the statement shows that the blockade of constitutionality has
been removed by stating that the 5-judge bench decision of the Supreme Court does
not impliedly overrule the decisions of 2002 and 2003. However, while doing
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so, the latter part of this statement, read with the succeeding paragraph,33 it is also
stated categorically that “there is no contradiction as to the fact that right to vote is
neither a fundamental right, nor a Constitutional [sic] right, but a pure and simple
statutory right…” and this introduces, an element of conceptual ambiguity, which
requires review.
Thenceforth, the course of constitutional developments took two different directions.

First, in the direction of widening the citizen's right to vote so as to include within its
ambit the right to negative voting; second, in the direction that tended to deviate
from the constitutionally consistent course hitherto taken by the Supreme Court in two
consecutive decisions in 2002 and 2003.
First, to proceed with the finding of the 3-judge bench of the Supreme Court in
People's Union for Civil Liberties-2013 that the constitution bench of the Supreme
Court in Kuldip Nayar has not impliedly overruled the two three-judge bench decisions
of 2002-2003. With this decision in hand, there was no difficulty in logically
proceeding ahead to hold and conclude that a citizen in the exercise of his right to
vote has also the right to reject all the contesting candidates without losing his right
to secrecy.
In order to further fructify this conclusion, the Supreme Court, presumably acting
under article 142 of the Constitution,34 directed the Election Commission of India that
in the exercise of its wide powers under article 324 of the Constitution, it should make
a provision of negative voting through the insertion of NOTA (none of the above)
button on EVMs (Electronic Voting Machines).35 Following this directive of the Supreme
Court, the Election Commission issued orders to all the chief electoral officers of all the
states and the union territories to make provision of NOTA button so as to enable a
citizen-voter to exercise his right to reject if he found that none of them was worthy of
his vote.36
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For comprehending the concept of negative voting through NOTA, there is a need to
clarify its underlying concept.
IV NOTA-underlying concept NOTA & the concept of ‘not voting’: Are they
intrinsically different?
Both emanate from the right to vote. The right to vote includes the right ‘not to
vote’. In case of NOTA, which inheres the concept of negative voting, a voter chooses
not to vote for any of the contesting candidates. In that sense, both seem to be similar
in purport.
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Until the introduction of NOTA, under the relevant provisions of the Conduct of
Election Rules, 196137 the voter might choose not to vote by not going to the polling
booth if he did not like the credentials of any of the contesting candidates. And even if
he chose to go to the polling booth and collected the requisite receipt as an insignia of
his entitlement to vote, and then changed his mind not to record his vote, he could do
that. In that eventuality, to account for his presence, a remark to that effect was made
against the said entry in form 17-A by the presiding officer and the signature or
thumb impression of the elector shall be obtained against such remark.
However, in both the situations of exercising his right ‘not to vote’, ‘secrecy’ of
citizen's right to vote was breached, which is otherwise sacrosanct and required to be
maintained under the Representation of the People Act, 195138 read with the relevant
provisions of the Rules of 1961.39 The provision of NOTA on EVM (Electronic Voting
Machine) rectifies this lacuna.40
NOTA & Abstain button on EVM in Parliament: Are they similar?
The three-judge bench of the Supreme Court in People's Union for Civil Liberties-
2013 explained the mechanics of NOTA by comparing it with Abstain button used on
EVM in Parliament:41
NOTA provision is ‘exactly similar to the Abstain button since by pressing the NOTA
button the voter is in effect saying that he is abstaining from voting since he does not
find any of the candidates to be worthy of his vote.”
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In the author's submission, the analogy of parliamentary practice is only to a

limited extent. It is similar only to the extent of three types of options. In the
parliamentary voting machine, there are three options: Ayes, Noes and Abstain. In the
general elections, all the buttons on the EVMs, prior to the introduction of NOTA, could
be broadly be divided into two categories, corresponding to Ayes and Noes that gave
an option to the voter to vote in favour of one (or more) of the contesting candidates
in preference to all the rest. Now with the provision of NOTA, it came to be equated
with Abstain. A closer look reveals that NOTA is not just abstaining. The voter is not
just adopting the stance of neutrality by saying that the he is neither favouring this
candidate nor that candidate; he is going beyond that; he is positively rejecting all of
them. This, indeed, is an assertive way of conveying ‘disapproval’.
NOTA: An instrument of silent ‘systemic change’
The Supreme Court, while introducing the concept of negative voting though NOTA
in People's Union for Civil Liberties-2013, has made the following statement:42
When through NOTA a large number of people are expressing their disapproval
with the candidates put up by political parties, ‘gradually there will be a systemic
change and the political parties will be forced to accept the will of the people and
field candidates who are known for their integrity.”
Apart from this generic statement, the Supreme Court has not dealt with the modus
operandi of the concept of negative voting; that is, it does not deal with the nitty-
gritty of how and in what manner it is going to impact the polity, say, in terms of the
aggregate of NOTA votes or otherwise. It seems, the Supreme Court had left the
matter to the Parliament to work out the broad policy perspective in the light of their
holdings in the judgment. This became evident when subsequently the Supreme Court
refused to entertain a writ by way of public interest litigation (PIL), in which the
petitioners sought a direction of the court to the Election Commission that it should
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order re-election in constituencies where the majority of the voters rejected all the
contesting candidates by pressing the NOTA button.43 The clear reason given was that
it was for the Parliament to amend the law in the light of the three-judge bench
judgment of the Supreme Court on September 27, 2013, and that the court was not
inclined to intervene at that stage.
Soon thereafter, assembly elections were held in the States of Delhi, Chhatisgarh,
Rajasthan and Madhya Pradesh with the provision of NOTA button on the EVMs.
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The computation of the results showed that in all the assembly elections not more
than 15 lakh voters used NOTA. In Delhi, less than 1% voters used NOTA button. This
negligible percentage of voters using NOTA button has led to the popular perception
that NOTA has ‘no electoral value’ inasmuch as it does not impact the result of
elections. Is it really so?
If that be so, how then NOTA could bring about “gradually”, as the Supreme Court
put it, “a systemic change” in the body politic? What the Supreme Court meant to say
is that NOTA cannot bring about an instant change in the political system. It would be
a ‘gradual’ change. One may call it an ‘invisible’, ‘imperceptible’ or ‘subtle’ change. In
fact, such an impact of NOTA, painted in words, amounts to saying: ‘Beware, NOTA is
watching you!’ This is how it has impacted the decision-making of the political parties
in the selection of their candidates for the ensuing 16th Lok Sabha elections. It has
cautioned them to select only those candidates, who are known for their integrity.44
“Candidates' image to play crucial role in LS elections,” was the note of caution that
depicted the public mood.45 Accordingly, on the principle of integrity as perceived by
the public, very many heavy weights in political arena are denied party representation
in the Parliament.46 It seems, at this point of time, we are tempted to state
principally: ‘The lesser the number of NOTA votes, the greater is the invisible impact
of NOTA!’
NOTA impacted features causing ‘systemic change’
One may cull the following NOTA impacted features causing ‘systemic change’ in
the body politic from the Supreme Court judgment in People's Union for Civil Liberties-
2013:
(a) NOTA accommodates diversity of views by widening the choice of voters through
the addition of negative voting.47
(b) NOTA ensures ‘free and fair elections’ by freeing voters from the “fear of
reprisal, duress or coercion” in the exercise of their right to vote,48 or otherwise
protecting them from the oppression of the political party known for its ‘bully’
character.49
Page: 41
(c) NOTA strengthens the citizen's fundamental rights by widening the ambit of the
right to freedom of speech and expression under article 19(1)(a) on the one
hand and effectively protecting his right to personal liberty under article 21 of
the Constitution on the other.50
(d) NOTA, promotes equality by preventing electoral system from being violative of
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the fundamental right to equality under article 14 of the Constitution.51
(e) NOTA increases the participation of voter-citizens in the democratic process,
because now they have the opportunity of rejecting all the contenders if they are
found not suitable and worthy of their votes.52
(f) NOTA “fosters purity of the electoral process”, say, by reducing/eliminating the
incidence of impersonation or fake voting through “wide” and “effective”
participation of the people.53
(g) NOTA approach is constitutionally consistent:54 it helps to realize the ideal of
democratic system of government on the basis of constitutional values of justice,
liberty, equality and fraternity.
(h) NOTA augments the values of democracy by accelerating democratic processes
with incredible speed and accuracy through the exploitation of modern
technology, which is economically cost-effective, technologically feasible,55
Page: 42
administratively workable.56 Moreover, in order to make NOTA ‘people friendly’, the

Election Commission has been directed by the Supreme Court to introduce NOTA in a
“phased manner” and that too along with undertaking “awareness programmes to
educate the masses”.57
Summation of NOTA impact

(i) Though NOTA was formally introduced in the electoral system only on September
27, 2013, nevertheless its background consideration reveals that it is the
outcome and culmination of a long-drawn history of constitutional development
— a history spanning for more than 60 years that has transformed the formal,
simple, innocuous right to vote into a powerful instrument of silent ‘systemic
change’.
(ii) Visibly though, NOTA is said to be not of much ‘electoral value’, and yet, in the
author's estimate, its invisible impact seems to be immeasurable! It “serves”, as
the Supreme Court has put it, “a very fundamental and essential part of a
vibrant democracy”.58
(iii) Though it is true that hitherto our democratic system has not been working
ideally as expected in a true democracy, and yet it is by far the best system of
governance available to us, because it is premised on inclusive and equal
participation of all by granting every citizen under article 326 a constitutional
right to vote based solely upon universal principle of “adult suffrage”, which cuts
across the narrow confines of religion, race, cast, sex or place of birth.
(iv) NOTA is indeed a grass-root sustainable judicial strategy, for it tends to bring
about ‘a systemic change’ ‘from bottom up’ in the body politic, and yet leaves
enough space for the Parliament to work out a broad policy perspective, but only
in accordance with the constitutionally consistent principles propounded by the
Supreme Court in their judgment of September 27, 2013.
V Conclusion
The constitutional developments that have hitherto taken place represent more or
less a continuum. Barring aside some deviation, which calls for immediate attention,
their central thrust, one may venture to suggest, paves the way, for the next
progressive
Page: 43
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phase in which ‘the right to vote’ would eventually include within its ambit ‘the right
to re-call’. This is on the basis of a simple axiomatic premise that the ‘right to do’
inheres the ‘right to undo’. It would, in turn, accentuate the process of systemic
change at least with two evident advantages. One, the right to recall would avoid the
waiting agony for full five years in getting rid of those who are found indulging in
corrupt and criminal practices by misusing their power and position. Two, that would
make them accountable on continual, day-to-day, basis, leaving little time and space
for them to have recourse to manipulative practices, say, for amassing huge wealth
through corrupt means.59
The singular deviating count, requiring immediate attention for establishing

constitutionally consistent continuity, relates to the ambiguity about the intrinsic
nature of the citizen's right to vote. In People's Union for Civil Liberties-2013, the
Supreme Court's reading of the constitution bench decision in Kuldip Nayar is in
consonance so far as it holds that the 5-judge bench does not ‘impliedly’ overrule the
two three-judge bench decisions of 2002 and 2003.60 However, an ambiguity creeps in
when by virtue of reading the same 5-judge bench judgment it is stated that “there is
no contradiction as to the fact that right to vote is neither a fundamental right, nor a
Constitutional [sic] right, but a pure and simple statutory right…”61 which requires
review for the free flow of further constitutional development in exploring the intrinsic
value of the right to vote. It should suffice to say that the propositional statement
within quotes was clearly counteracted by the three-judge bench in People's Union for
Civil Liberties-2003 so far as it related to exposition of the citizen's right to vote.62
Page: 44
The perusal of Kuldip Nayar reveals that the 5-judge bench did not dispute this
counteraction by stating that “this Court [in that 3-Judge Bench decision] treated the
right to vote to be carrying within it the constitutional right of freedom of speech and
expression.”63 Having thus stated, the constitution bench proceeded to state: “But the
same cannot be said about the right to stand for election, since that right is a right
regulated by the statute.”64 Accordingly, they further distinguished and demarcated
the arena of the right to stand for election from that of the right to vote by
observing:65
Even without going into the debate as to whether the right to vote is a statutory
or constitutional right, the right to be elected is indisputably a statutory right i.e.
the right to stand for election can be regulated by law made by Parliament. It is
pure and simple a statutory right that can be created and taken away by Parliament
and, therefore, must always be subject to statutory limitations.
Notwithstanding exposition of the limited context in which the propositional
statement, namely, the right to vote is “neither a fundamental right, nor a common
law right, but a statutory right pure and simple”, could be relied upon, it continues to
be invoked unjustly as the basic principle in the exposition of the citizen's right to
vote.66 For instance, a three-judge bench of the Supreme Court in Desiya Murpokku
Dravida Kazfagam,67 albeit by majority, relied upon the same old proposition in
expounding the citizen's right to elect.68 It hardly needs any re-iteration that the right
to vote emanates directly from article 326 of the Constitution in most clear and
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Page: 45
categorical terms.69 It is, therefore, clearly a constitutional right. “It is not very
accurate to describe it as a statutory right, pure and simple,” has been iterated 70 and
re-iterated71 by the apex court.
However, in order to make the right to vote truly functional, the three-judge bench
of the Supreme Court in People's Union for Civil Liberties-2003 showed great ingenuity
by construing that the fundamental right to freedom of speech and expression under
article 19(1)(a) is implicit in the constitutional right to vote.72 Such a judicial
construction, instantly raising the status of the right to vote to that of a fundamental
right, is axiomatic and, therefore, cannot be disputed, else the citizen's right to vote
would ever remain inchoate.
For fortifying the constitutional course of ‘systemic change’ through the judicial
exposition of citizen's right to vote, legislative codification of the un-codified judge-
made law is a must.73 It is only through legislative codification such law can put in a
systematic, coherent and consistent form, which is otherwise lying embedded in
scattered judicial decisions. Legislative codification, of course, must be preceded by
Page: 46
continual sustained juridical analysis for deciphering the embedded law, which is
highly contextual and, therefore, needs juristic handling.74
Thereafter, legislative codification must be followed by, what is termed as, ‘Re-
statement of the whole gamut of codified law’,75 because that alone would ensure that
the internal inconsistencies, that often creep in during the process of adjudication of a
given conflict situation, or while employing, say, the non-obstante clause —
‘notwithstanding anything contained’ in the hitherto prevailing law — are removed,
explained or otherwise straightened up.
In short, the law expounded by courts in the course of dispensation of justice needs
to be refined, defined, systemized and shaped by the Parliament though debates,
discussions and deliberations in the light of constitutional policy perspective. The
collaborative outcome, representing the cumulative wisdom of society, would not only
avert the possible conflict and confusion, but admirably accelerate the whole process
of systemic change for cleansing our body politic by strengthening the rule of law.
———
* This article is based on two lectures delivered by the author very recently, both impinging upon the subject of
citizen's right to vote. The first lecture was delivered as a part of Panjab University Special Lecture Series,
Colloquium No. IX, and the second lecture under the aegis of the Indian Council of Social Science Research,
North-Western Regional Centre at the ICSSR Complex, Panjab University Campus, in the Special Lecture Series.
** L.L.M., S.J.D. (Toronto, Canada), Formerly Founding Director (Academics), Chandigarh Judicial Academy;
Professor & Chairman, Department of Laws, Dean, Faculty of Law; Fellow, Panjab University; & UGC Emeritus
Fellow in Law. E-mail: [email protected]
1 On all-India basis, it is said to be around not more than 50 per cent. However, with the addition of about 20
crore of more voters, the 16th Lok Sabha is expected to make a mark in the increased participation of the people
in the largest democracy of the world.
2 See, for instance, the vehement plea of the spiritual guru Ravi Shankar, the Founder of the Art of Living, to his
followers is: “Spread awareness about the right to vote” The Tribune Oct. 23, 2013. Participation of the masses
in the electoral process will bring about “a change in the system”. It will strike at the very root of corruption. In
support of his contention, he specifically said: “We have a list of around 12-crore fresh voters who will be voting
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-
this year, however, as per the Election Commission around 10-crore are fake voters,” available ah
http://www.tributeindia.com/2013/20131023/cth.Lhtm (last visited on Mar. 12, 2014).
3 Available at: http://www.presidentofidia.nic.in (last visited on Mar. 12, 2014).
4 (2002) 5 SCC 294 : AIR 2002 SC 2112, per MB Shah, Bisheshwar Prasad Singh and H.K. Sema JJ. (Hereinafter
simply, Association for Democratic Reforms-2002).
5
(2003) 4 SCC 399 : AIR 2003 SC 2363, per MB Shah, P Venkatarama Reddi and D.M. Dharmashikari JJ.
(Hereinafter simply, People's Union for Civil Liberties-2003).
6 In view of the increasing public concern about the murky state of affairs, the Union government on 9th July
1993 set up a committee under the chairmanship of the then home secretary N.N. Vohra (now the Governor of
the State of Jammu and Kashmir) to study, inter alia, the nexus amongst criminals, politicians and bureaucrats,
and recommend the requisite measures to de-criminalize our polity.
7 Vohra Committee Report para 6.2 (1993) The updated version of the extent of criminalization of politics, Out
of 543 MPs, 162 have criminal cases pending against them. It means that 30 percent of Lok Sabha MPs have
criminal record. The study suggests that out of 4,807 MPs and MLAs in India, a whopping 1,460 have criminal
records pending against them. Here again, around 30 percent of Indian lawmakers have criminal record. Available
at http://mahindra-aggarwalonline.20m.com/PR-vohjacommittee_Report.htm. (last visited on Mar. 18, 2014).
8 (1997) 4 SCC 306. (Hereinafter simply, Dinesh Trivedi, M.P.)
9
Ibid.
10 Ibid.
11 Ibid.
12
The Representation of the People (Amendment) Ordinance, 2002 (No. 4 of 2002), promulgated on Aug. 24,
2002.
13
The Representation of the People (Amendment) Act, 2002, which was passed on Oct. 23, 2002.
14 Id. s. 2 (w.e.f. Aug. 24, 2002).
15 Insertion of new section 33A.-After section 33 of the Representation of the People Act, 1951 (43 of 1951)
(hereinafter referred to as the principal Act), the following section shall be inserted, namely:— 33 A. Right to
information:—
(1) A candidate shall, apart from any information, which he is required to furnish, under this Act or the rules
made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, also furnish the
information as to whether — (i) he is accused of any offence punishable with imprisonment for two years or more
in a pending case in which a charge has been framed by the Court of competent jurisdiction; (ii) he has been
convicted of an offence other than any offence referred to in sub-section (1) or sub-section (2), or covered in
sub-section (3) of Section 8 and sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer
the nomination paper under sub-section (1) of Section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under sub-section (1)
display the aforesaid information by affixing a copy of the affidavit, delivered under sub-section (2) at a
conspicuous place at his office for the information of the electors relating to a constituency for which the
nomination paper is delivered.
16 The extent of this right to information is limited under Section 33-B, which specifically requires a candidate to
furnish information only as provided under the Act and rules. It opens with a non-obstante clause:
Notwithstanding anything contained in any judgment, decree or order of any Court or any direction, order of any
other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such
information, in respect of his election, which is not required to be disclosed or furnished under this Act or the
rules made thereunder.
17 AIR 1952 SC 64 : 1952 SCR 218.

18 (1982) 1 SCC 691 : AIR 1982 SC 983.
19 Supra note 5 at 2391.
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20 Id. at 2411.
21 See, Virendra Kumar, “People's Right to Know Antecedents of their Election Candidates: A Critique of
Constitutional Strategies” 47 Journal of the Indian Law Institute 135-157 (2005). In this critique, the author has
closely and critically examined, how the Supreme Court, very ingeniously, invoked the various constitutional
strategies, and provided entirely a new dimension to the right to vote — a dimension that hitherto remained
unexplored.
22 People's Union for Civil Liberties v. Union of India, (2013) 10 SCC 1.
23Cumulatively, these rules do recognize the right of a voter not to vote but still the secrecy of his having not
voted is not maintained in its implementation, inasmuch as in case an elector decides not to record his vote, a
remark to this effect shall be made against the said entry in form 17-A by the presiding officer and the signature
or thumb impression or the elector shall be obtained against such remark. It is this stance which makes the
ground of challenge.
24 (2013) 10 SCC 1. (Hereinafter People's Union for Civil Liberties-2013)
25(2006) 7 SCC 1, per Y.K. Sabharwal CJI (for himself and K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K.
Balasubramanyan JJ.) (Hereinafter simply, Kuldip Nayar).
26
In this case, the amendment made in the Representation of the People Act, 1951 through the amending Act of
2003, deleting the requirement of ‘domicile’ in the state concerned for getting elected to the Council of States
(Rajya Sabha), was challenged under art. 32 of the Constitution. One of the central issues on this count before
the constitution bench was whether such a change could be made by the Parliament. The petitioners contended
that such a deletion violated the fundamental right of the voters of the state concerned and thereby disturbing
the basic structure of the Constitution that envisaged federalism. It is in this context, the propositional
statement made by the Supreme Court earlier; namely, the right to vote is “neither a fundamental right nor a
common law right;” it is a “statutory right, pure and simple.” “Outside of statute, there is no right to
elect…” [N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64 : 1952 SCR 218; Jyoti Basu v. Debi Ghosal,
(1982) 1 SCC 691 : AIR 1982 SC 983], came to be considered. Since the constitution bench answered the
question in the affirmative, it was taken to mean that the constitution bench impliedly overruled the said
propositional statement.
27
See People's Union for Civil Liberties-2013 (para 4).
28 Ibid.
29
See, Id. para 17.
30 The ratio of the two said judgments (as read by the three-judge bench in People's Union for Civil Liberties-
2013 is: “In succinct, the ratio of the judgment was that though the right to voter is a statutory right but the
decision taken by a voter after verifying the credentials of the candidate wither to vote or not is his right of
expression under Article 19(1)(a) of the Constitution.” (Para 19). The purport of this statement becomes clearer
in the succeeding paragraph: “As a result, the judgments in Association for Democratic Reforms-2002 and
People's Union for Civil Liberties-2003 have not disturbed the position that right to vote is a statutory right. Both
the judgments have only added that the right to know the background of a candidate is a fundamental right of a
voter so that he can take a rational decision of expressing himself while exercising the statutory right to
vote.” (Para 20).
31 See People's Union for Civil Liberties-2013 (para 21).
32
Ibid.
(Emphasis added.)
33 “… The contention of the petitioners in Kuldip Nayar was that majority view in People's Union for Civil Liberties-
2003 held that right to vote is a Constitutional right besides that it is also a facet of fundamental right under
Article 19(1)(a) of the Constitution. It is this contention on which the Constitution Bench did not agree in the
opening line in para 362 and thereafter went on to clarify that in fact in People's Union for Civil Liberties-2003, a
fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of
expression. Thus, there is no contradiction as to the fact that right to vote is neither a fundamental right nor a
Constitutional [sic] right but a pure and simple statutory right…” People's Union for Civil Liberties-2013 (para
21).
(Emphasis added.)
34Art. 142 of the constitution, in the exercise of its jurisdiction, empowers the Supreme Court to pass “such
decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.”
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35
This concept of negative voting is already in vogue in the electoral system of very many other countries, both
small and large. France, Belgium, Brazil, Bangaladesh, State of Naveda of the USA (36th State), for instance, are
having the provision of negative voting through NOTA on their EVMs. Finland, Sweden, the USA (some of the
states) have the provision of neutral voting along with negative voting through blank vote button/a provision on
ballot paper. [See People's Union for Civil Liberties-2013 (para 58)]
36
“EC issues order on NOTA option” The Sunday Tribune Oct. 13, 2013.
37Rule 41(2) and rule 41(3) and rule 49-O of the Conduct of Election Rules, 1961 (hereinafter simply Rules of
1961) recognize the right of a voter not to vote.
38 See s. 128 of the Representation of the People Act, 1951 (hereinafter Act of 1951).
39
See rules 39, 41, 41-M of the Rules of 1961.
40
Rules 41(2) and (3), and 49-O have been declared ultra vires s. 128 of the Act of 1951 and also art. 19(1)(a)
of the Constitution to the extent they violate secrecy of voting, see People's Union for Civil Liberties-2013 (para
61).
41
People's Union for Civil Liberties-2013 (para 57).
Emphasis added.
42 Id., para 57.
(Emphasis added.)
43
See “NOTA: SC rejects PIL for re-poll” The Tribune Nov. 25, 2013.
44 See “Ticket —for-tainted debate rocks Congress” The Tribune Mar. 12, 2014.
45
See also “Cong panel undecided on tainted candidates” The Tribune Mar. 13, 2014.
46
See “Tainted Kalmadi denied ticket” The Tribune Mar. 19, 2014.
47NOTA allows “people to have diverse views, ideas and ideologies” People's Union for Civil Liberties-2013 (para
49).
48 Id., para 54.
49
Id., para 55.
50
“Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured
under Article 21, that is, the right to liberty.” Ibid.
51See id., para 54. Prior to the introduction of NOTA, secrecy was maintained only in respect of those citizens
who wish to cast their votes in favour any one of the contesting candidates (positive voting) and no such
secrecy was given to those who wanted to reject all of them (negative voting), and thereby violating the
fundamental right to equality under art. 14 of the Constitution. See id., para 46.
52
Earlier, if a voter was not happy with the contesting candidates, he simply did not participate and absented
himself, and this did not matter for the contestants. Such non-participation “causes frustration and disinterest,
which is not a healthy sign of a growing democracy like India.” Id., para 50.
53
Id., para 53. Presently, “in the existing system a dissatisfied voter ordinarily does not turn up for voting,
which, in turn, provides a chance to scrupulous elements to impersonate the dissatisfied voter and cast a vote,
be it a negative one,” id., para 56.
54 In order to make NOTA constitutionally consistent, the Supreme Court has directed the state to realign the
relevant rules for the conduct of election so as to be in consonance with the principles as laid down in part III of
the Constitution, especially with reference to arts. 14, 19(1)(a) and 21. Rules 41(2) & (3) of the Conduct of
Election Rules of 1961 have been held as ultra vires s. 128 of the Representation of the People Act, 1951 and
art. 19(1)(a) of the Constitution to the extent they violate secrecy of voting. See id., para 61.
55
There are no practical difficulties in the adoption of NOTA button on EVMs. Presently, the EVMs that are
currently in use can accommodate as many as 64 panels with last panel with NOTA. Election Commission is
exploring the possibility of developing ballot unit with 200 panels. Id., para 59.
56 The implementation of the NOTA button, according to Election Commission, will not require much effort except
for allotting the last panel in the EVM for the same. Id., para 60.
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-
57 Id., para 61.

58
Id., para 58.
59 Huge expenditure, which is likely to be involved in holding repeated re-elections, is often cited as an
impediment to the adoption of re-call provision. Such a problem is not insurmountable. The problem can be met
atleast in two ways. Firstly, in the name of huge expenditure, speaking principally, should we continue to be
represented by corrupt MPs or MLAs? The seeming reply is simply a big “NO”, because the very purpose of
retaining such MPs or MLAs is lost if they become corrupt. Therefore, such an eventuality should be taken as an
instance of, say, a bad investment, and for this we must be ready and willing to bear the loss resulting from
recurring damage. Secondly, such a financial loss can also be minimized. And for this, the author may suggest a
strategy: namely, the invocation of the ‘Public Trust Doctrine’ as expounded by the Supreme Court in M.C.
Mehta v. Kamal Nath, (1997) 1 SCC 388, per Kuldip Singh J (for himself and S. Saghir Ahmad J) for protecting our
environment. [For the exposition of this doctrine, see author's article, “Breach of the Doctrine of Public Trust:
Lessons to be Learned in Environmental Protection” XXXII The Journal of Corporate Professionals Chartered.
Secretary [A-405 1293-A 409 1297], (2002). On analogous basis of this doctrine, the polluters of ‘political,
democratic, system must be made to recompense not only for the damage caused, both financially or otherwise,
but must also suffer exemplary damages for discouraging others who tend to resort to such misadventures in
future.
60 See supra note 30 and the accompanying text.
61
See supra notes 31 and 32 and the following text.
62
See supra note 21.
63 Supra note 25 at 106 (para 298).
64
Ibid.
65
Id. at 106 (para 299). For the rest of elaboration on this count, see Id. at 106-107 (paras 300-302).
66In N.P. Ponnuswamy and Jyothi Basu (supra note 26), which are cited for the authoritative sources of the
propositional statement under consideration, the limited question before the Supreme Court revolved around the
nature of the legal right to raise an election dispute and the forum before which such dispute could be raised. In
N.P. Ponnuswarmy, the question was whether a challenge, under art. 226 of the Constitution, to the rejection of
the nomination of N.P. Ponnuswamy at an election to the Legislative Assembly is permissible in view of the
specific prohibition contained under art. 329(b) of the Constitution. In Jyothi Basu, likewise, the question was
who were the persons who could be arrayed as parties to an election petition. This simply shows that the
propounded principle was never meant for the exposition of the citizen's right to vote as such.
67
Desiya Murpokku Dravida Kazhagam v. Election Commission of India, per, (2012) 7 SCC 340 : AIR 2012 SC
2191 Altamas Kabir J (for himself and Surinder Singh Nijjar J), Chelmeswar J (dissenting). (Hereinafter simply),
DMDK-2012.
See the author's comment, “Denial of common symbol to a de-recognized political party for its candidates:
68
Whether violates citizen's constitutional fundamental right,” XLVIII Annual Survey of Indian Law 418-427 (2012).
69Art. 326: “The elections to the House of the People and to the Legislative Assembly of every State shall be on
the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than
eighteen years of age … on such date as may be fixed in that behalf by or under any law made by the
appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the
appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice,
shall be entitled to be registered as a voter at any such election.”
70
People's Union for Civil Liberties-2003 at 2401 (para 101) per Reddi J.
71DMDK-2012 at 2217-2018 (para 73), per J Chelmeswar J (dissenting), citing P.V. Reddi J in People's Union for
Civil Liberties-2003.
72
See supra note 21.
73Owing to non-codification of the judge-made law, for instance, the Kerala High Court in Mani C. Kappan v.
K.M. Mani, 2007 (1) KLT 228, per T.B. Radhakrishnan J did not comprehend the value of the law laid down by the
Supreme Court in People's Union for Civil Liberties-2003 while holding in an election petition that non-disclosure
by the elected candidate of his liabilities in the affidavit annexed with the nomination paper is not violation of the
Constitution, but merely ignoring the orders of the Election Commission issued under art. 324 of the Constitution.
This stand of the Kerala High Court may be compared with the one taken by the Patna High Court in Bishnudeo
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Bhandari v. Mangani Lal Mandal, decided on Nov. 25, 2011, per V.N. Sinha J in which it was held, in our view
correctly, that failure of the elected candidate not to disclose information which is required to be disclosed in
view of the two judgments of the Supreme Court passed in Association for Democratic Reforms-2002 and
People's Union for Civil Liberties-2003 Supreme Court amounts to breach/non-compliance of Constitution and not
just ignoring the order of the Election Commission of India, because his order under the direction of the Supreme
Court is the law of the land under art. 141 of the Constitution.
74 This is the work of the state judicial academies led by the National Judicial Academy at Bhopal; law professors
in the universities; and the institutes of legal learning like the Indian Law Institute, New Delhi.
75
The exercise of ‘Re-statement of Law’ could be legitimately taken up by the state law commissions and the
Law Commission of India on a continual basis.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.
© EBC Publishing Pvt.Ltd., Lucknow.

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Page 1 Thursday, February 20, 2020

Citizen's Right to Vote: Role of the Supreme Court in Empowering Citizenry to

CITIZEN'S RIGHT TO VOTE: ROLE OF THE SUPREME COURT IN EMPOWERING CITIZENRY

II Exploration of constitutional values

In order to understand the value of this proposition to be expounded by the

A right to elect, fundamental though it is to democracy is, anomalously enough,

Thenceforth, the course of constitutional developments took two different directions.

In the author's submission, the analogy of parliamentary practice is only to a

administratively workable.56 Moreover, in order to make NOTA ‘people friendly’, the

Summation of NOTA impact

The singular deviating count, requiring immediate attention for establishing

17 AIR 1952 SC 64 : 1952 SCR 218.

57 Id., para 61.

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