Case Analysis: People’s Union for Civil Liberties vs. Union of India & Anr.

- By Kunal Shekhar

Writ Petition (Civil) No. 161 OF 2004

Citation (2013) 10 SCC 1
Petitioner: People's Union for Civil Liberties (PUCL)
Respondent No 1: Union of India
Respondent No 2: Election commission of India
Date of Judgement: 27 September 2013
Bench: P Sathasivam (CJ), RP Desai, Ranjan Gogoi

FACTS:

 This case deals with the right of voter which should be given secrecy while voting, which
includes his “right of not voting”.
 Petitioners (PUCL) filed a writ petition under Article 32 of the Constitution to challenge
the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Election
Rules, 1961.

ISSUES:

1. Whether a writ can be issued in a case dealing with a statutory right of voting?
2. Whether the rules 41(2)(3) and 49 O of conduct election rules, 1961 violate the
fundamental rights of the voter?

CONTENTION OF THE PETITIONER:

 According to Petitioner these provisions violate the free and fair and is required to be
maintained according to Section 128 of the Representation of the People Act, 1951 and
Rules 49-M of the Conduct of Election Rules, 1961.
 Petitioner contended that the right of voter of not voting is a part of freedom of speech
and expression under Article 19(1)(a) and is also considered under these rules but still
his right of secrecy is not maintained under Rules 41(2) and (3) and 49-O.
 Petitioner prayed for order or direction to Election Commission to statutory provision
for the protection of right of voter not to vote in the electronic voting machines and
ballot machine.
CONTENTION OF THE RESPONDENT:

 Respondent contended that Right to vote is neither a common law nor a constitutional
right nor a fundamental right but only a statutory right and hence is not maintainable to
writ jurisdiction under Article 32.

JUDGEMENT:

Ratio Decidendi / rationale for the decision

 The Court recognized the fact Right to vote is a statutory right but the decision of voter
whether he will vote or not is a freedom of expression under Article 19 (1)(a).
 The Supreme Court had ruled that the NOTA option “may be provided in EVMs” so that
voters are able to exercise their “right not to vote while maintaining their right of
secrecy”.
 Election must always be free and fair, and this can only happen when the secrecy of the
voter's choice is maintained under all circumstances, even if he/she decides to press the
NOTA option, otherwise it would lead to the violation of Article 14,19(1)(a) and 21 of the
Indian Constitution.

Obiter Dicta / judge's expression of opinion

The Judges opined, “When the political parties will realize that a large number of people are
expressing their disapproval with the candidates... 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.”