(This is an immediate response to the judgment; I hope to have a couple of guest posts on this in the coming week)
Yesterday, the Supreme Court, in PUCL v. Union of India, upheld the constitutional right of citizens to cast a negative vote in elections. The exact political ramifications of this judgment will probably become clear once the Election Commission comes up with the modalities of its implementation; from a constitutional point of view, this judgment is important as it further underscores the centrality of Article 19(1)(a) to election disputes.
In PUCL v. Union of India, the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. Both sides agreed on the fact that thecombined effect of these rules was that persons who did not vote in elections were recorded (by the presiding officer) as having not voted. The petitioners argued that this was a violation of the right to secret balloting, protected by Articles 19(1)(a) and 21 of the Constitution.
Relying upon Kuldip Nayar v. Union of India, the State raised a preliminary objection on the ground that since voting was not a fundamental or constitutional right, but only a “statutory right” brought into existence by the Representation of Peoples Act, this wasn’t an Article 32 fundamental rights petition in the first place. Rejecting this contention, the Court distinguished between the “right to vote” and the “freedom of voting as a species of the freedom of expression“. [Paragraph 19] This is what explained the Court’s earlier decisions in PUCL v. Union of India and Association for Democratic Reforms v. Union of India, where the right to know the antecedents of politicians had been brought within the ambit of Article 19(1)(a) as part of the “right to know”. [Paragraph 20]
The Court then found that in a system of direct elections, secrecy was essential in order to ensure the effectiveness of the vote – that is, elections could not be free and fair unless secrecy was maintained (that much is logical; naturally, the only way of preventing bribery, coercion and post-election reprisals is secrecy). Further, since the freedom to vote naturally included the freedom not to vote, it would be arbitrary to extend secrecy to one and not the other. [Paragraph 31] It buttressed its argument by invoking Indira Nehru Gandhi v. Raj Narain and Kihoto Hollohan v. Zachilhu for the unexceptionable proposition that an effective democracy functioning through periodic fair and free elections is part of the basic structure of the Constitution. [Paragraph 45] In addition, the act of not voting was as much a positive exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection [Paragraph 49]. The Court therefore directed the Election Commission to introduce a “None of the Above [NOTA]” option into the Electronic Voting Machines. [Paragraph 61]
The judgment of the Court is important, as it clarifies the constitutional status of voting. What does it mean to say that the right to vote is only statutory, but the act of voting is an exercise of free speech protected by Article 19(1)(a)? Only this: the right to vote is statutory insofar as the modalities of voting are regulated by statute (the Representation of Peoples Act); questions of who can vote, when and in what manner, what restrictions and rules political parties must abide by, and so on – these are matters undoubtedly determined by statute, and subject to the control of the legislature. The act of voting, however, is – at least in theory – the most important act of expression through which the citizen participates in a representative democracy. So while the right to vote remains only a statutory right, parliament nonetheless may not erect any formal or substantial barriers that render voting ineffective or nugatory. Consider the following hypothetical: parliament tomorrow repeals the Representation of Peoples Act, and substitutes it… with nothing (effectively creating itself as a permanent oligarchy). Can one seriously suggest that that act would be constitutional? It is in this sense that the freedom to vote is – in its abstract sense – a constitutional and a fundamental right, the contours and lineations of which are to be worked out by parliament through statute.
This conclusion follows inexorably from Article 19(1)(a) and from the structure of the Constitution itself. On this blog, we have often discussed how, in a series of cases, the Court has located the philosophy of Indian free speech in a functioning liberal democracy where speech plays the important role of raising political awareness, communicating views to government, and so on; would this mean anything if the basic mechanism that defines a representative democracy – periodic change in government through elections – was compromised or made ineffective (for a similar argument deriving the right to free speech from the right to petition government for grievances, see Charles Black, Structure and Relationship in Constitutional Law)? In addition, Part XV of the Constitution is devoted entirely to the conduct of elections, including non-discrimination rules (Article 325); and Article 326 expressly states that elections to the House and the Assemblies are to be on the basis of adult suffrage; what would be the point of all this if the government was free to abolish elections altogether? And lastly, representative democracy – as discussed above – is a basic feature of the Constitution; potentially, the government might someday come up with an alternative way of doing representative democracy that dispenses with elections. Until that time, however, effective elections – and consequently, an effective vote – remain a constitutional right and a fundamental right.
It is submitted, therefore, that the Supreme Court’s decision is correct, and that it’s analysis of the relationship between elections, the right to vote, and Article 19(1)(a) is substantially correct as well. One minor objection might be made: it was enough for the Court to have said – as, in substance, it did – that the freedom envisioned by Article 19(1)(a) is the freedom to have a say in government through the mechanism of the vote, and that naturally must include the option to not vote as well; but it was a mistake to further ground the right by referring to potential negative consequences of revealed identity. It is easy enough to imagine how, if one’s vote is revealed after an election, the winning (or losing) party might exact reprisals – which, in turn, will affect how one votes in the election. Yet it is difficult to see how by not voting at all (for anyone), and having that fact as public knowledge, would lead to repression or reprisal. That remains, however, a minor quibble.
And lastly, as a closing aside, it is worthwhile to note while the challenge was made under Articles 19(1)(a) and 21, the final holding turned only upon Article 19(1)(a) [see paragraph 61]. In an age where it is often said that Article 21 has been transformed into a bottomless receptacle for the judiciary to pour in its own ideas of the right and the good, the Court’s conscious resistance to Article 21’s siren call is to be commended.