Centre Says Right to Vote Different From Freedom of Voting

Syllabus: GS2/ Polity and Governance

Context

• The Centre has argued in the Supreme Court that the ‘right to vote’ in an election is different from the ‘freedom of voting’.
  • It stated that while the right to vote is a mere statutory right, the freedom of voting is a part of the fundamental right to freedom of speech and expression.

About

• The petition before the Supreme Court seeks to declare Section 53(2) of the Representation of the People Act, 1951, and Rule 11 with Forms 21 and 21B of the Conduct of Elections Rules, 1961 as unconstitutional.
• Legal Provisions Involved
  • Section 53(2), RPA 1951: If the number of validly nominated candidates equals the number of seats to be filled, the Returning Officer (RO) must declare them elected without conducting a poll.
  • Forms 21 & 21B: Used by the RO to officially declare candidates elected without voting.
  • Article 19(1)(a): Guarantees the freedom of speech and expression.

Petitioners’ Arguments

• Violation of voters’ freedom of expression: By declaring a candidate elected without polling, citizens are denied their right to express dissent through None of the Above (NOTA).
• NOTA as a democratic tool: NOTA enables voters to register dissatisfaction with all contesting candidates; removing the opportunity to vote suppresses that expression.

Centre’s Response

• Citing the PUCL vs Union of India (2003) judgment, the Centre said that the freedom of expression arisesonly when a poll takes place. Without a poll, there’s no occasion to exercise this freedom.
  • Hence, freedom of voting is an incidence of a poll.
  • If no election is held (as in uncontested cases), voters cannot claim the right to vote or NOTA.
• The Centre also clarified that NOTA is not a candidate under Section 79(b) of the RPA, 1951. It is merely an option or expression, not a contesting entity.
  • Elections cannot remain undecided; declaring a winner ensures certainty.

Significance 

• Democratic Representation: It raises questions about the balance between electoral efficiency and voter autonomy.
• Constitutional Interpretation: Tests the boundary between statutory voting rights and the constitutional right to expression.
• Electoral Reform Debate: Could influence future reforms in uncontested seat mechanisms and NOTA’s legal standing.

Types of Rights

• Natural rights are inherent and inalienable rights that are bestowed by nature on individuals. 
  • Right to life and liberty are considered to be natural rights. 
  • Indian courts may decide that a natural right is embodied in a fundamental right, but they do not directly enforce any natural right.  For instance, the Right to life under Article 21 is seen as a reflection of the natural right to live with dignity.
  • The state is prohibited from making laws that violate these rights. 
• Constitutional rights are contained in the Constitution but outside of Part III.
  • These rights include the right to property, free trade, and no taxation without the authority of law. 
  • They are enforceable in a High Court under Article 226 or as per the legal process in the laws that operationalise them.
• Statutory or legal rights are provided and amended by ordinary laws of Parliament or State legislature.
  • Examples include right to work under the MGNREG Act; rights of scheduled tribes under the Forest Rights Act; right to subsidised food grains under the National Food Security Act etc. 
  • These are enforceable as per the legal process in the laws that provide these rights.

Status of Right to Vote

• Article 326 of the Constitution grants every citizen the right to vote, without any discrimination. 
• The laws enacted by Parliament in this regard are the Representation of the People Act, 1950 (RP Act, 1950) and the Representation of the People Act, 1951 (RP Act, 1951). 
• The legal status of the right to vote has been a subject matter of debate in various cases in India. 
  • In the N.P.Ponnuswami case (1952) Supreme Court held that the right to vote is a statutory right and subject to limitations imposed by it. 
  • In the PUCL case (2003), Justice P.V. Reddy observed that the right to vote, if not a fundamental right, is certainly a ‘constitutional right.’
  • In the Anoop Baranwal case (2023), the majority opinion reiterated the judgment in the Kuldip Nayar case, that the right to vote is only a statutory right. 
• Hence, the current legal status of the right to vote is that it is a statutory right.

Source: TH