Right to vote is statutory, freedom of voting is fundamental, Centre tells Supreme Court
New Delhi: The Centre has told the Supreme Court that the “right to vote” and the “freedom of voting” are distinct, arguing that while the former is a statutory entitlement, the latter is part of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
The matter, listed before a bench led by Justice Surya Kant on Thursday, coincided with the first phase of polling in the Bihar Assembly elections. However, the hearing did not take place as the bench did not assemble.
The Centre’s response came in connection with a petition filed by the Vidhi Centre for Legal Policy and the Association for Democratic Reforms (ADR), represented by advocates Harsh Parashar, Prashant Bhushan, and Neha Rathi. The petition challenges Section 53(2) of the Representation of the People Act (RPA), 1951, and Rule 11 read with Forms 21 and 21B of the Conduct of Elections Rules, 1961, contending that these provisions violate voters’ freedom of speech by not allowing a poll in uncontested elections.
Section 53(2) of the RPA mandates that when the number of candidates equals the number of seats in an election, the Returning Officer must declare all such candidates duly elected, without conducting any poll. The petitioners argued this deprives voters of their right to express dissent by choosing the “None of the Above” (NOTA) option.
In its affidavit, the Centre clarified that the “right to vote” is a creation of statute under Section 62 of the RPA and is subject to legal limitations, while the “freedom of voting” arises only during the act of casting a ballot. Citing the 2003 judgment in ‘PUCL vs Union of India’, the government noted that “the right to vote cannot be placed on the pedestal of a fundamental right, but at the stage when the voter casts his vote, his freedom to express arises.”
The Centre maintained that this freedom exists only when an actual poll is held. “Freedom of voting is an incidence of a poll,” it stated, explaining that a vote takes place only when the number of candidates exceeds the number of seats, as laid out in Section 53(1) of the Act. Rejecting the petitioners’ argument, the government asserted that NOTA does not qualify as a “candidate” under Section 79(b) of the RPA. “NOTA cannot be given an artificial personality. It is merely an option or an expression,” it said, adding that elections cannot be left undecided by withholding results.
The Election Commission, in a separate affidavit, supported the Centre’s view, noting that treating NOTA as a contesting candidate would require legislative amendment. It also observed that uncontested elections are rare, recording only nine such instances in 20 general elections since 1951, and only one in the past 34 years. “This shows that uncontested elections have become an exception,” the Commission stated.
