PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER versus UNION OF INDIA AND ANOTHER

Citation: [2009] 2 S.C.R. 921 · Decided: 23-02-2009 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Matter referred to larger bench

Judgment (excerpt)

[2009] 2 S.C.R. 921 
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 
A 
t 
v 
UNION OF INDIA AND ANOTHER 
I 
Writ Petition (Civil) No.161 of 2004 
FEBRUARY 23, 2009 
B 
(8.N. AGRAWAL AND G.S. SINGHVI, JJ.) 
• 
REPRESENTATION OF THE PEOPLE ACT, 1951/CONDUCT 
' 
OF ELECTION RULES, 1951: 
Sections 33A, 33B!Rules 41(2) and 49-0 - Right to c 
negative voting and to keep it secret - Appropriate directions 
to Election Commission to make necessary provision in the 
ballot papers and in Electronic Voting Machines - Prayed for 
in Writ Petition - Held: C. B. Judgment in Ku/dip Nayar's case 
has not overruled or discarded the ratio in Association for D 
' 
Democratic Reforms and PUCL, both by 3 Judges Bench, 
tends to create a doubt whether the right of voter to exercise 
his choice for the candidate is a necessary concomitant of the 
voter's freedom of expression' guaranteed under Article 
19(1)(a) of the Constitution - Thus the issue needs a clear 
E 
exposition of law by a lqrger Bench - Also the width and 
amplitude of the power of the Election Commission under 
Article 324 of the Constitution needs further consideration by 
a larger Bench in the light of Supreme Court Judgments 
recognizing elector's right to be informed of the assets and 
antecedents of the candidates - Reference to larger Bench. 
F 
In the Writ Petition, the petitioners have prayed for 
striking down Rules 41 (2) and 49-0 of the Conduct of 
Election Rules, 1961 and for a direction to the Election 
Commission to make appropriate provision in the ballot 
G 
papers and Electronic Voting Machines (EVMs) so as to 
' 
enable the voters to exercise their right of negative voting . 
and also ensure that exercise of such right is kept secret. 
Referring the matter to a larger Bench, .the Court 
921 
H 
922 
SUPREME COURT REPORTS 
[2009] 2 S.C.R. 
A 
HELD: 1. Democracy is a part of the basic structure 
.} 
of our Constitution and rule of law and free and fare 
) 
I " 
election are basic features of democracy. Democracy 
F 
postulates that there should be periodical elections so 
that people may be in a position either to re-elect the same 
B representatives or choose new representatives. 
Democracy also contemplates that elections should be 
free and fair and the voters should be in a position to vote 
for the candidates of their choice. The pre-requisite of this 
is that the elections are not rigged and manipulated and 
C the candidates or their agents are not able to resort to 
unfair means and malpractices. [Para 1] (925-A-B] 
2. In view of the judgments in Association for 
Democratic Reforms, and PUCL, a new dimension was 
given to the right of sovereign· i.e. the people to make 
o choice of their representatives after knowing the assets 
and antecedents of the persons seeking_ election to the 
legislatures. These judgments also gave an expansive 
meaning to the term 'expression' used in Article 19(1)(a) 
by declaring that in the democratic set up of our country 
E 
the elector's right to have complete information about the 
candidates and then express his choice for a particular 
person, are necessary concomitant of the freedom of 
expression guaranteed under Article 19(1 )(a). [Para 8] 
(934-H; 35-A-B] 
F 
Union of India vs. Association of Democratic Reforms 
and Anr. (2002) 5 SCC 294 (LB) and People's Union for Civil 
Liberties vs. Union of India (2003) 4 SCC 399 - referred to. 
3. Having carefully read paragraphs 349 to 364 of the 
judgment in Ku/dip Nayar vs. Union of India [(2006) 7 SCC 
G 
1] which are found under the head 'Right to Vote - A 
Constitutional/Fundamental Right', it is seen that 
eventhough the Constitution Bench did not overrule or 
discard the ratio of the three-Judges Bench judgments in 
Union of India vs. Association of Democratic Reforms and Anr. 
H [(2002) 5 SCC 294 (LB)] and People's Union for Civil Liberties 
,_
' 
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 923 
.. 
V. UNION OF INDIA AND ANOTHER 
' .. 
vs. Union of India [(2003) 4 SCC 399}, the opening line of A 
para 362 tend to create a doubt whether the right of voter 
to exercise his choice for the candidate is a necessary 
concomitant of the voter's freedom of expression 
guaranteed under Article 19(1 )(a) of the Constitution. 
Therefore, this issu_e needs a clear exposition of .law by a B 
larger Bench. Further, the width and amplitude of the 
power of the Commission under Article 324 needs further 
consideration by a larger Bench in the light of the 
I 
judgments of thi

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