The ticklish issue of a voter's right to cast a negative vote in elections was on Tuesday referred by the Supreme Court to a larger bench as it involved some key questions related to constitutional law.
The People's Union for Civil Liberties had filed a petition in the apex court pleading that a voter should be given the right to reject all candidates, if he/she so desires, by indicating 'none of the above' in the voting machines.
A two-judge bench of Justices B N Aggrawal and G S Singhvi felt that the issue needed to be adjudicated by a larger bench as there were certain 'doubts' over the interpretation of the ruling passed by a Constitution bench in the Kuldip Nayar Vs Union of India [ Images ] case relating to a voter's right.
The Constitution bench, while rejecting an argument that the right to vote is a constitutional right, had observed, "It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basi Vs Debi Ghosal that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right but pure and simple a statutory right."
In the Union of India Vs Association for Democratic Reforms (2002) judgment, the apex court had said that Article 324 'is a reservoir of power for the Election Commission' and the same can be used for free and fair election; that under Article 19 (1) (a) the voter's right of speech and expression in case of election would include casting of votes.
The apex court felt that the issue needs to be examined by a larger bench in view of doubts over the judgments.
Under the existing provisions of Sections 49(O) of the Representation of Peoples Act, a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said voter.
According to the PUCL, Section 49(O) was violative of the Constitutional provisions guaranteed under Article 19 (1 (a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot.