PEOPLE'S UNION FOR CIVIL LIBERTIES & ANR. versus UNION OF INDIA & ANR.

Citation: [2013] 12 S.C.R. 283 · Decided: 27-09-2013 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Disposed off
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Judgment (excerpt)

(2013] 12 S.C.R. 283 
PEOPLE'S UNION FOR CIVIL LIBERTIES & ANR. 
v. 
UNION OF INDIA & ANR. 
(Writ Petition (C) No. 161 of 2004) 
SEPTEMBER 27, 2013 
[P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI 
AND RANJAN GOGOi, JJ.] 
CONSTITUTION OF IND/A, 1950: 
A 
B 
c 
Art. 19(1)(a) - Freedom of speech and expression --
Decision taken by a voter after verifying the credentials of the 
candidate, either to vote or not is a form of expression under 
Art.19(1)(a) -- Fundamental right under Art.19(1)(a) read with 
statutory right uls. 79(d) of the RP Act is violated unreasonably 0 
if right not to vote effectively is denied and secrecy is 
breached - Representation of the People Act, 1951 - s. 79(d). 
Art. 32 rlw Arts. 19(1)(a) and 14- Writ petition challenging 
rr.41(2), (3) and 49-0 of Conduct of Election Rules - Held: Is 
maintainable -- Casting of vote is a facet of right of expression 
E 
of an individual under Art.19(1)(a) -- Fundamental right under 
Art.19(1)(a) read with statutory right u/s. 79(d) of RP Act is 
violated unreasonably if right not to vote effectively is denied 
and secrecy is breached, which attracts Art. 14 -- Any violation 
of the said rights gives the aggrieved person the right to 
F 
approach Supreme Court under Art.32 and a prima facie case 
exists for exercise of jurisdiction under Art. 32 ·_ Besides, it 
may not be appropriate to direct the petitioners to go to each 
and every High Court and seek appropriate relief -- Therefore, 
Supreme Court is competent to hear the issues raised in the 
G 
writ petition filed under Art.32 - Conduct of Election Rules, 
1961 - rr. 41 (2), (3) and 49-0. 
CONSTITUTIONAL LAW: 
283 
H 
r 
284 
SUPREME COURT REPORTS 
[2013] 12 S.C.R. 
A 
Basic structure and Art. 14 of Constitution of India - Held: 
Democracy and free and fair election an~ part of the basic 
structure of Constitution of India and necessarily include within 
its ambit the right of an elector to cast his vote without fear of 
reprisal, duress or coercion -- Protection of elector's identity 
B and affording secrecy is, therefore, integral to free and fair 
elections and an arbitrary distinction betv•een the voter who 
casts his vote and the voter who does not cast his vote is 
violative of Art. 14 -- Thus, secrecy is required to be 
maintained for both categories of persons - Constitution of 
c India - Art. 14. 
CONDUCT OF ELECTION RULES, 1961: 
rr. 41(2), (3) and 49-0 - Held: A part of r.49-0 read with 
Form 17-A, which treats a'voter who decides not to cast his 
D vote differently and allows the secrecy to be violated, is 
arbitrary, unreasonable and violative of Art. 19 and is also 
ultra vires ss. 79(d) and 128 of the RP Act- rr.41(2), (3) and 
49-0 are ultra vires s.128 of thfi RP Act and Art.19(1)(a) of 
the Constitution to the extent they violate secrecy of voting -
E - Election Commission is directed to provide necessary 
provision in 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 
F exercise their right not to vote, while maintaining their right of 
secrecy -- Representation of the People Act, 1951-- ss. 79(d) 
and 128 - Constitution of India, 1950 - Art.19(1)(a). 
ELECTION LAWS: 
G 
Right to vote and right, after verifying credentials of the 
candidate, either to vote or not - Held: Judgments in 
Association for Democratic Reforms and PUCL have not 
disturbed the position that right to vote is a statutory right --
Both the judgments have only added that the right to know 
H the background of a candidate is a fundamental right of a 
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 
285 
OF INDIA 
voter so that he can take a rational decision of expressing A 
himself while exercising the statutory right to vote -- Ku/dip 
Nayar does not overrule the other two decisions rather it only 
reaffirms what has already been said by the two decisions. 
The instant writ petition was filed challenging the 
constitutional validity of rr. 41(2) and (3) and 49-0 of the 8 
Conduct of Election Rules, 1961 (the Rules) to the extent 
these provisions violate the secrecy of voting. The 
petitioners prayed for declaring rr. 41 (2), (3) and 49-0 of 
the Rules ultra vires and unconstitutional and also for a 
direction to the Election Commission of India-respondent C 
No.2, to provide necessary provision in the ballot papers 
as well as in the electronic voti
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