Five recent Judgments which will change the political scene and destiny of India

Five recent Judgments which will change the political scene and destiny of India

 1.   People’s Union for Civil Liberties vs Union of India

     Writ Petition (Civil) No.161/2004

     Judgment dated 27^th September 2013

     By Supreme Court of India

In this landmark judgment, the Supreme Court armed the voters with the right to cast a negative vote and reject all candidates at the time of voting in case the voter is not satisfied with any of the candidate. In this context, the Court directed the Election Commission of India to provide a ‘None of the Above’  (NOTA) button at the end of the panel on the Electronic Voting Machine (EVM) and in ballot papers. 

The court held that the election is a mechanism, which ultimately represents the  will  of  the  people.  The essence of the electoral system should be to ensure  freedom  of  voters  to exercise their free choice. Article 19 guarantees all individuals the  right to speak, criticize, and disagree on a particular issue. It  allows people  to  have  diverse  views,  ideas  and ideologies. Not allowing a person to cast vote negatively defeats  the  very freedom of expression and the right ensured in Article 21  i.e.,  the  right to liberty.  The  voters’  participation  in  the  election  is  indeed   the participation in the democracy itself. Non-participation causes  frustration and disinterest, which is not a healthy sign of  a  growing  democracy  like India.

For democracy to  survive,  it  is  essential that the best available men should be  chosen  as  people’s  representatives for proper governance of the country. This can be best achieved through  men of high moral and ethical values, who win the elections on a positive  vote. Thus in a vibrant democracy, the voter  must  be  given  an  opportunity  to choose none of the  above  (NOTA)  button,  which  will  indeed  compel  the political parties to nominate a sound  candidate. 

Democracy is all about choice. This choice can be better expressed  by giving the voters an opportunity to verbalize  themselves  unreservedly  and by imposing least restrictions on their ability to make such  a  choice.  By providing NOTA  button  in  the  EVMs,  it  will  accelerate  the  effective political participation in the present state of democratic  system  and  the voters in fact will be empowered. 

Giving  right  to  a  voter  not  to  vote  for  any  candidate  while protecting his right of secrecy  is  extremely  important  in  a  democracy. Such an option gives the voter the right to  express  his  disapproval  with the kind of candidates that are being  put  up  by  the  political  parties. When the political parties will realize that a large number  of  people  are expressing their disapproval with the  candidates  being  put  up  by  them, 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. 

In  the  existing system a dissatisfied voter ordinarily does not turn up for voting which  in turn  provides  a  chance  to  unscrupulous  elements  to  impersonate   the dissatisfied voter and cast a vote. A provision  of  negative  voting  would  be  in  the  interest  of  promoting democracy as it would send clear signals  to  political  parties  and  their candidates as to what the electorate think about them.

The court noted that even the voting machines in the Parliament  have  three Buttons and an option is given  to  the MPs  to  press  the  ABSTAIN  button. The court also noted that 13 countries have provided for negative voting in their electoral systems. 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.

This judgment will go a long way in cleansing the Indian politics from the evil of criminals and bad legislators. 

Read the full Judgment.

            2. Resurgence India vs Election Commission of India

    Writ Petition (Civil) No. 121/2008

    Judgment dated 13^th September 2013

    By Supreme Court of India

In this landmark verdict, the Supreme Court endorsed “right to know’ of the citizens and held that the voter has the elementary right to know the full particulars of a candidate who is to represent him in the parliament or the State Assemblies. The filing of affidavit by a candidate (disclosing personal details of the candidate including his assets and civil / criminal cases, if any, pending against him) at the time of filing his nomination papers is a very important stage. Earlier, many candidates used to leave certain columns in the affidavit as blank to conceal their assets or pendency of exact cases against them. The Court held that if particulars are left blank in the affidavit, it will render the affidavit nugatory and the candidate’s nomination paper would be rejected. The court held that if the candidate fails to fill the blank particulars even after reminder by the Returning Officer, the nomination paper is fit to be rejected.

Read the full Judgment.

     3. Lily Thomas vs Union of India

Writ Petition (Civil) No.490/2005

Judgment dated 10^th July 2013

By Supreme Court of India

Section 8(1) & (2) of the Representation of People Act 1951 prescribes that a person shall be disqualified for being chosen or for being a member of either House of Parliament or of legislative assembly or legislative council of a State if he is convicted of an offence punishable under specific laws specified therein. The disqualification is for a period of 6 years from the date of conviction if he is sentenced to only the fine. The disqualification is for a further period of 6 years from the date of his release if he is sentenced to imprisonment. Section 8(3) prescribes that if a person is convicted of an offence not covered under Section 8(1) or 8)2) and is sentenced to imprisonment for two years or above, then he is disqualified from the date of conviction and shall continue to be disqualified for a further period of 6 years from the date of his release. However, Section 8(4) provided a protection to such persons. The protection was that if a person is member of Parliament (MP) or member of a legislature of a State (MLA) on the date of his conviction, then the disqualification incurred in Section 8(1), (2) or (3) shall not take effect unless three months have elapsed from the date of conviction or until the appeal or revision filed by him in respect of conviction or sentence is disposed off by the Court if such appeal/revision is filed within said period of three months.

It is a known fact that such politicians who were convicted by a court still managed to wriggle out of the rigours of law by filing an appeal / revision and then ensuring that it is not decided for years.

The Supreme court in this judgment has put an end to this practice and quashed Section 8(4) altogether.

The Supreme Court observed that the  affirmative  words used in Articles 102(1)(e) and 191(1)(e) of the Constitution of India confer power on Parliament to  make one law laying down the same disqualifications for a person  who  is  to  be chosen as member of either House  of  Parliament  or  as  a  member  of  the Legislative Assembly or Legislative Council of a State and for a person  who is a sitting member of  Parliament  or  a  House  of  the  State Legislature. The  words  in  Articles  101(3)(a)  and  190(3)(a)  of  the Constitution put express limitations on such powers  of  the  Parliament  to defer  the  date  on  which  the  disqualifications   would have effect. In view thereof, the Supreme Court held that  Section 8 (4) of the Representation of People Act 1951  which  carves  out  a saving in the case of sitting members of  Parliament  or  State  Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section  8 of the Act or which defers the date on which the disqualification will  take effect in the case of a sitting member of Parliament or a State  Legislature is beyond the powers conferred on Parliament by the Constitution. The Court thus held that Parliament has  exceeded  its  powers  by enacting Section 8 (4) of the Representation of People Act 1951 and accordingly Section 8 (4) of the Act was held to be ultra vires the Constitution.

Read the full Judgment.

    4.  Chief Election Commissioner vs Jan Chowkidar (People’s Watch)

Civil Appeal No. 3040-3041/2004

Judgment dated 10^th July 2013

By Supreme Court of India

In this judgment, the Supreme Court noted that as per Section 62(5) of the Representation of People Act 1951, a person who is confined in prison under a sentence of imprisonment (i.e. who has been convicted by a court after trial) or who is in lawful custody of police, can not vote at any election and is thus not an “elector” defined in Section 2(e). As per Section 2(e), an “elector” is a person whose name is entered in electoral rolls of a constituency and who is not disqualified from voting. On the same analogy, the Supreme Court upheld the order of Madras High Court that if a person can not vote and is not an elector, then such a person can not also contest elections for parliament or state legislative assemblies as Section 4(d) and Section 5(c) says that if a person is not an ‘elector’, he is not qualified to be chosen to fill a seat in the House of the People (Lok Sabha) and Legislative assembly of a State respectively.  

The High Court had held as under :

“A right to vote is a statutory right, the Law gives it, the Law takes it away.  Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws  framed under it, read together, that persons in the lawful  custody  of the Police also will not be voters, in  which  case,  they  will neither be electors.  The Law temporarily takes away the power of such persons to go anywhere near the election scene.  To vote is a statutory right. It is privilege to vote, which privilege may be taken away.  In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an  elector  and the privilege to vote when in the lawful custody of  the  police, is taken away.”

The Supreme Court upheld the High Court’s judgment. This judgment debars the persons who are either in prison serving a sentence after conviction or who are in lawful custody of police, from contesting elections of MP or MLA.  

Read the full Judgment.

  

5.   Subhash Chandra Aggarwal vs Indian National Congress & others

Judgment dated 3^rd June 2013

By Central Information Commission (Full Bench)

The Full Bench of the Central Information Commission headed by Mr. Satyendra Mishra, the Chief Information Commissioner, in this landmark ruling, held that the political parties which were subject matter of said appeal, viz. Inbdian National Congress (INC), Bhartiya Janta Party (BJP),  

CPI(M), CPI, NCP and Bahujan Samaj Party (BSP) are public authorities under Section 2(h) of the Right to Information (RTI) Act. Now people can file RTI applications with these parties and obtain any information pertaining to their working, like the source of their finances and the information related to their income and expenses. This will usher in a new era of transparency. This may put a stop to the rampant practice of show off and spending thousands of crores in the elections as the parties and candidates would be under public scrutiny through RTI.

Read the full Judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Right of voter to Reject a candidate during elections - landmark Judgment passed by Supreme Court of India on 27th September 2013

The Hon'ble Supreme Court of India has today 27th September 2013 passed a landmark judgment on the right of a voter to reject all candidates at the time of voting. This judgment will go a long way in cleansing the Indian politics from the evil of criminals and bad legislators. 

Here is the concluding text of the Judgment, which makes an interesting reading :

"49)   However, correspondingly, we should also appreciate that the  election is a mechanism, which ultimately represents the  will  of  the  people.  The essence of the electoral system should be to ensure  freedom  of  voters  to exercise their free choice. Article 19 guarantees all individuals the  right to speak, criticize, and disagree on a particular issue. It  stands  on  the spirit of tolerance and allows people  to  have  diverse  views,  ideas  and ideologies. Not allowing a person to cast vote negatively defeats  the  very freedom of expression and the right ensured in Article 21  i.e.,  the  right to liberty.
 50)    Eventually,  voters’  participation  explains  the  strength  of  the democracy. Lesser voter participation is  the  rejection  of  commitment  to democracy slowly but definitely whereas larger participation is  better  for the democracy. But, there is no yardstick to determine what the correct  and
right voter participation is. If introducing a NOTA button can increase  the participation of democracy then, in our cogent  view,  nothing  should  stop the  same.  The  voters’  participation  in  the  election  is  indeed   the participation in the democracy itself. Non-participation causes  frustration and disinterest, which is not a healthy sign of  a  growing  democracy  like India.
 Conclusion:
51)    Democracy being the basic  feature  of  our  constitutional  set  up, there can be no two opinions  that  free  and  fair  elections  would  alone guarantee the growth of a healthy  democracy  in  the  country.  The  ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage  conferred on the citizens of India by the Constitution has made it possible for  these millions of individual voters to go to the polls  and  thus  participate  in the governance of our country. For democracy to  survive,  it  is  essential that the best available men should be  chosen  as  people’s  representatives for proper governance of the country. This can be best achieved through  men of high moral and ethical values, who win the elections on a positive  vote. Thus in a vibrant democracy, the voter  must  be  given  an  opportunity  to choose none of the  above  (NOTA)  button,  which  will  indeed  compel  the political parties to nominate a sound  candidate.  This  situation  palpably tells us the dire need of negative voting.
 52)   No doubt, the right to vote is a statutory right  but  it  is  equally vital to recollect that this statutory right is the  essence  of  democracy. Without this, democracy will fail to thrive. Therefore, even  if  the  right to vote is statutory, the significance attached with the right  is  massive. Thus, it is necessary to keep in mind these facets while deciding the  issue at hand.
 53)   Democracy is all about choice. This choice can be better expressed  by giving the voters an opportunity to verbalize  themselves  unreservedly  and by imposing least restrictions on their ability to make such  a  choice.  By providing NOTA  button  in  the  EVMs,  it  will  accelerate  the  effective political participation in the present state of democratic  system  and  the voters in fact will be empowered. We are of  the  considered  view  that  in bringing out this right to cast negative vote at a time when  electioneering is in full swing, it will foster the purity of  the  electoral  process  and also fulfill one of its objective, namely, wide participation of people.
 54)   Free and fair election is a basic structure of  the  Constitution  and necessarily includes within its ambit the right of an elector  to  cast  his vote without fear of reprisal, duress or coercion. Protection  of  elector’s identity and affording secrecy  is  therefore  integral  to  free  and  fair elections and an arbitrary distinction between the voter who casts his  vote and the voter who does not cast his vote is violative of Article  14.  Thus, secrecy is required to be maintained for both categories of persons.
 55)   Giving  right  to  a  voter  not  to  vote  for  any  candidate  while protecting his right of secrecy  is  extremely  important  in  a  democracy. Such an option gives the voter the right to  express  his  disapproval  with the kind of candidates that are being  put  up  by  the  political  parties. When the political parties will realize that a large number  of  people  are expressing their disapproval with the  candidates  being  put  up  by  them, 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.
 56)   The direction can also be supported by the fact that in  the  existing system a dissatisfied voter ordinarily does not turn up for voting which  in turn  provides  a  chance  to  unscrupulous  elements  to  impersonate   the dissatisfied voter and cast a vote, be it a  negative  one.  Furthermore,  a provision  of  negative  voting  would  be  in  the  interest  of  promoting democracy as it would send clear signals  to  political  parties  and  their candidates as to what the electorate think about them.
 57)   As mentioned above, the voting machines in the Parliament  have  three buttons, namely, AYES, NOES, and ABSTAIN.  Therefore, it can  be  seen  that an option has been given  to  the  members  to  press  the  ABSTAIN  button. Similarly, the NOTA button being sought for by the  petitioners  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.
 58)   The mechanism of negative voting, thus, serves a very fundamental  and essential  part  of  a  vibrant  democracy.  The  following  countries  have provided for neutral/protest/negative voting in their electoral systems:
 |S.No |Name of the Country    |Method of Voting   |Form of Negative |
|                                 |                       |                   |Vote             |
|1.   |France                             |Electronic              |NOTA             |
|2.   |Belgium                           |Electronic               |NOTA             |
|3.   |Brazil                               |Ballot Paper           |NOTA             |
|4.   |Greece                            |Ballot Paper           |NOTA             |
|5.   |Ukraine                           |Ballot Paper           |NOTA             |
|6.   |Chile                               |Ballot Paper           |NOTA             |
|7.   |Bangladesh                      |Ballot Paper           |NOTA             |
|8.   |State of Nevada, USA     |Ballot Paper           |NOTA             |
|9.   |Finland                              |Ballot Paper         |Blank Vote and/or|
|     |                       |                                                |‘write in*’      |
|10.  |Sweden                            |Ballot Paper         |Blank Vote and/or|
|     |                       |                                              |‘write in*’      |
|11.  |United States of                |Electronic/Ballot  |Blank Vote and/or|
|     |America                             |(Depending on      |‘write in*’      |
|     |                                          |State)             |                 |
|12.  |Colombia                         |Ballot Paper         |Blank Vote       |
|13.  |Spain                               |Ballot Paper          |Blank Vote       |
 * Write-in’ – The ‘write-in’ form of negative voting allows a voter to  cast a vote in favour of any fictional name/candidate.
 59)   The Election Commission also brought to the notice of this Court  that the present electronic voting machines can be used in a  constituency  where the number of contesting candidates is up to 64. However, in  the  event  of there being more than 64 candidates  in  the  poll  fray,  the  conventional system of ballot paper is resorted to. Learned  counsel  appearing  for  the Election Commission also asserted through supplementary  written  submission that  the  Election  Commission  of  India  is   presently   exploring   the possibility of developing balloting unit with 200 panels. Therefore, it  was submitted that if in case this Court decides to uphold the  prayers  of  the petitioners herein, the additional panel on the  balloting  unit  after  the last panel containing the name and election symbol of  the  last  contesting candidate can be utilized as the NOTA button.  Further,  it  was  explicitly asserted in  the  written  submission  that  the  provision  for  the  above facility for a negative or neutral vote can  be  provided  in  the  existing electronic voting machines without any  additional  cost  or  administrative
effort or change in design or technology  of  the  existing  machines.   For illustration, if there are 12 candidates contesting an  election,  the  13th panel on the balloting unit will contain the words like “None of the  above” and the ballot button against this panel will be kept open and  the  elector who does not wish to vote  for  any  of  the  abovementioned  12  contesting candidates, can press the button against the 13th panel and  his  vote  will be accordingly recorded by the control unit. At the time  of  the  counting, the votes recorded against serial number 13 will indicate  as  to  how  many electors have decided not to vote for any candidate.
 60)   Taking note of the submissions of Election Commission, we are  of  the view that the implementation of  the  NOTA  button  will  not  require  much effort except for allotting the last panel in the EVM for the same.
 61)   In the light of the above discussion, we hold that Rules 41(2)  (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and  Article 19(1)(a) of the Constitution to the extent they violate secrecy  of  voting. In view of our conclusion, we direct  the  Election  Commission  to  provide necessary provision in the ballot  papers/EVMs  and  another  button  called “None of the Above” (NOTA) may be provided in EVMs so that the  voters,  who come to the polling booth and decide not to vote for any of  the  candidates in the fray, are able to exercise their right not to vote while  maintaining their right of secrecy.  Inasmuch as the Election Commission  itself  is  in favour of the provision for NOTA in EVMs, we direct the Election  Commission to implement the same either in a phased  manner  or  at  a  time  with  the assistance of the Government of India.  We also  direct  the  Government  of India to provide necessary help for implementation of the  above  direction. Besides, we also direct  the  Election  Commission  to  undertake  awareness programmes to educate the masses.
 62)   The writ petition is disposed of with the aforesaid directions.
                                   ……….…………………………CJI.
                                       (P. SATHASIVAM)
                                     ………….…………………………J.
                                      (RANJANA PRAKASH DESAI)
                                    ………….…………………………J.
                                       (RANJAN GOGOI)
 NEW DELHI;
SEPTEMBER 27, 2013".
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Read the full Judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm