Holding

The court held that the questions of whether negative voting is part of the freedom of expression under Article 19(1)(a) and the breadth of the Election Commission’s power under Article 324 require clarification by a larger Bench, and therefore referred the matter to a larger Bench.

Summary

The petitioners sought to strike down Rules 41(2) and 49‑0 of the Conduct of Election Rules, 1961 and to direct the Election Commission to provide for negative voting and its secrecy in ballot papers and EVMs. The Court examined the constitutional status of the right to vote, the concept of negative voting, and the scope of the Election Commission’s powers under Article 324, referring to earlier judgments that linked the right to information about candidates with freedom of expression under Article 19(1)(a). While acknowledging that the Constitution Bench had not overruled the earlier three‑judge decisions, the Court found a lingering doubt on whether the voter’s choice is a necessary concomitant of freedom of expression. Consequently, it held that a larger Bench must resolve the issue and referred the matter for further consideration.

Issues considered

The extent to which the right to vote, including the right to negative voting, is a facet of the freedom of expression guaranteed under Article 19(1)(a).
The constitutional validity of Rules 41(2) and 49‑0 of the Conduct of Election Rules, 1961 in relation to secrecy of ballot and negative voting.
The scope and amplitude of the Election Commission’s power under Article 324 to modify ballot papers and EVMs for negative voting.

Legislation cited

Conduct of Election Rules, 1961s. 41(2), s. 49-0
Representation of the People Act, 1951s. 128, s. 338, s. 33A, s. 33B

Subjects

negative votingsecrecy of ballotfreedom of expressionArticle 19(1)(a)Article 324Election CommissionRepresentation of the People ActConduct of Election Rulesbasic structure doctrinefundamental rightsright to information

Judgment

[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
exposition of law by a lqrger Bench - Also the width and E
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
papers and Electronic Voting Machines (EVMs) so as to G
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.
)
I
"
A HELD: 1. Democracy is a part of the basic structure .}
of our Constitution and rule of law and free and fare
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 this Court whereby the elector's right to be
informed about the assets and antecedents of the persons c
seeking election to the legislature has been duly
recognized. [Para 20] [944-H; 945-A-C]
Smt. Indira Nehru Gandhi v. Shri Raj Narain and another
1975 Supp. SCC 1; Mohinder Singh Gill v. Chief Election
Commissioner (1978) 1 sec 405; Lily Thomas V. Speaker, D
Lok Sabha and others (1993) 4 SCC 234; State of UP v. Raj
Narain (1'9-75) 4 SCC 428; Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India (1985) 1SCC641; Kanhiya
Lal Omar v. R.K. Trivedi (1985) 4 SCC 628; Common Cause
(A Registered Society) v. Union of India (1996) 2 SCC 752; E
N.P Ponnuswami v. Returning Officer 1952 SCR 218; G.
Narayanaswami v. G. Pannerselvan (1972) 3 SCC 717; C.
Narayanaswamy v. C.K. Jaffer Sharief (1994) Supp 3 SCC
170; Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691; Ku/dip
Nayar v. Union of India (2006) 7 SCC 1; Jagan Natff v. Jaswant F
Singh 1954 SCR 892; Rama Kant Pandey v. Union of India
(1993) 2 SCC 438; Keshvananda Bharti v. State of Kera/a 1973
(4) SCC 225; S. Raghubir Singh Gill v. S Gurcharan Singh
Tohra 1980 Supp SCC 53 and Kihoto Hallahan v. Zachillhu
1992 Supp. (2) SCC 651 - referred to.
(
G
,
'
Case Law Reference
~
1975 Supp. ~cc 1 referred to Para 1
(1978) 1 sec 405 referred to Para 3
(1993) 4 sec 234 referred to Para 4 H
924 ' SUPREME COURT REPORTS [2009] 2 S.C.R.
...
A (2002) 5 SCC 294 (LB) referred to
(1975) 4 sec 428 referred tO
Para 5
Para 6
~ ..
t
t:
,,_

(1985) 1 sec 641 referred to Para 6
(1985) 4 sec 628 referred to Para 6
B
(1996) 2 sec 752 referred to Para 6
(2003) 4 sec 399 referred to Para 7

c
1952 SCR 218 referred to Para 7 '
(1972) 3 sec 111 referred to Para 7
(1994) Supp 3 sec 110 referred to Para 7
(1982) 1 sec 691 referred to Para 7

D (2006) 1 sec 1 referred to Para 14
1954 SCR 892 referred to Para 15
(1993) 2 sec 438 referred to Para 15
1973 (4) sec 225 referred to Para 19
E
1980 Supp sec 53 referred to Para 19
1992 Supp. (2) SCC 651 referred to Para 19
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No.161 of 2004
~

.
F
Rajinder Sachhar, Sanjay Parikh, Jitin Sani, Mamta
Saxena, A.N. Singh, for the Appellant.
Meenakshi Arora, S.K. Mendiratta, Survrajyoti Gupta, for ,;

the Respondents.

'
G
A. Sharan, ASG, Navin Prakash, Gaurav Agarwal, Rekha
p
Pandey, C.K. Sharma, S.N. Terdol, D.S. Mahra, for Union of
India ..

The Judgement of the Court was delivered by
H
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 925
V. UNION OF INDIA AND ANOTHER

G.S. SINGHVI, J. A
1. Democracy is a part of the basic structure of our
Constitution and rule of law and free and fare election are basic
features of democracy. Democracy postulates that there should
be periodical elections so that people may be in a position either
8
to re-elect the same 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 electior:is are not rigged and manipulated and the
candidates or their agents are not able to resort to unfair means C
and malpractices. These are, in substance, the observations
made by H.R. Khanna, J. in his concurring judgment in Smt.
Indira Nehru Gandhi v. Shri Raj Narain and another [1975
supp. sec 1].
D
2. Sir Winston Churchill described the importance of vote
in a democratic election in the following words:
"At the bottom of all tributes paid to democracy is the little
man, walking into a little booth, with a little pencil, making
a little cross on a little bit of paper - no amount of rhetoric E
or voluminous discussion can possibly diminish the
overwhelming importance of the point".
3. In Mohinder Singh Gill v. Chief Election
Commissioner [(1978) 1 SCC 405], the Constitution Bench.
after quoting the words of Sir Winston Churchill, proceeded to F
add 'if we may add, the little, large Indian should not be hijacked
from the course of free and fair elections by mob muscle
methods, or subtle perversion of discretion by men "dressed in
little, brief authority". For "be you ever so high, the law is above
you". G

'ii 4. In Lily Thomas v. Speaker, Lok Sabha and others
[(1993) 4 SCC 234], the Court elucidated meaning of the term
voting in the following words:

"Voting is the formal action of will or opinion by the person H
926 SUPREME COURT REPORTS [2009] 2 S.C.R.

A entitled to exercise his right on the subject and issue in
question. Right to vote means right to exercise the right in
favour or against the motion. Such a right implies the right
to remain neutral as well."
5. The scope of the citizen's right to express his/her opinion
B through the medium of the franchise was further developed in
Union of India v. Association for Democratic Reforms and
another [(2002) 5 sec 294 (LB)]. That case emanated from
the directions given by Delhi High Court to the Union of India
and Election Commission of India (for short 'the Commission')
c to implement the recommendations made by the Law
1
Commission in its 170 h Report and make necessary changes
in Rule 4 of the Conduct of Election Rules, 1961 [for short, 'the
Rules']. Simultaneously, the Court considered the prayer made
in the writ petition filed by petitioner no.1 herein under Article 32
D of the Constitution for issue of a direction to the candidates to
declare their assets and the facts relating to criminal case, if
any, registered or pending against them before the election .
•
After noticing the background in which directions were given by
the High Court, this Court framed the following questions:
E
"1. Whether the Election Commission is empowered to
issue directions as ordered by the High Court?
2. Whether a voter - a citizen of this country - has
right to get relevant information, such as assets,
F qualification and involvement in offence for being
educated and informed for judging the suitability of
a candidate contesting election as MP or MLA?"
6. The Court then discussed various facets of the term
'election' and width and amplitude of the Commission's power
G under Article 324, referred to various judgments including those
of Mohinder Singh Gill v. Chief Election Commissioner
(supra), State of U.P. v. Raj Narain [(1975) 4 SCC 428], Indian
Express Newspapers (Bombay) (P) Ltd. v. Union of India
[(1985) 1SCC641], Kanhiya Lal Omarv. R.K. Trivedi [(1985)
H 4 SCC 628], Common Cause (A Registered Society) v.
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 927
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]

Union of India [(1996) 2 SCC 752] and laid down seven A
propositions of which proposition Nos.1, 2, 4, 5 and 7 are
extracted below:
"1. The jurisdiction of the Election Commission is wide
enough to include all powers necessary for smooth
conduct of elections and the word "elections" is wsed
B
in a wide sense to include the entire process of
~lection which consists of several stages and
,, " embraces many steps.
2. The limitation on plenary character of power is when c
Parliament or State Legislature has made a valid
law relating to or in connection with elections, the
Commission is required to act in conformity with the
said provisions. In case where law is silent, Article
324 is a reservoir of power to act for the avowed D
purpose of having free and fair election. The
Constitution has taken care of leaving scope for
exercise of residuary power by the Commission in
its own right as a creature of the Constitution in the
infinite variety of situations that may emerge from
E
time to time in a large democracy, as every
contingency could not be foreseen or anticipated by
the enacted laws or the rules. By issuing necessary
J.
directions, the Commission can fill the vacuum till
there is legislation on the subject. In Kanhiya Lal
Omar case the Court construed the expression F
"superintendence, direction and control" in Article
324(1) and held that a direction may mean an order
issued to a particular individual or a precept which
many may have to follow and it may be a specific or
a general order and such phrase should be construed G
liberally empowering the Election Commission to
issue such orders.
4. To maintain the purity of elections and in particular to
bring transparency in the process of election, the
H
''

928 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Commission can ask the candidates about the
expenditure incurred by the political parties and this •
transparency in the process of election would include
transparency of a candidate who seeks election or
re-election. In a democracy, the electoral process
B has a strategic role. The little man of this country
would have basic elementary right to know full
particulars of a candidate who is to represent him in
Parliament where laws to bind his liberty and property
may be enacted.
' .
c 5. The right to get information in democracy is ,·~

recognised all throughout and it is a natural right
flowing from the concept of democracy. At this stage,
we would refer to Article 19(1) and (2) of the
International Covenant on Civil and Political Rights,
D which is· as under:
(1) . Everyone $hall have the right to hold opinions
"
without interference.
(2) Everyone shall have the right to freedom of
E expression; this right shall include freedom to
seek, receive and impart information and "-

ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or l·
through any other media of his choice. "'·
F 7. Under our Constitution, Article 19(1 )(a) provides
for freedom of speech and expression. Voter's
speech or expression in case of election would
include casting of votes, that is to say, voter
speaks out or expresses by casting vote. For
G' this purpose, information about the candidate to be
selected is a must. Voter's (little man - citizen's)
II
right to know antecedents including criminal past of
his candidate contesting election for MP or MLA is
much more fundamental and basic for survival of
H democracy. The little man may think over before
I
I

....,..

PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 929
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]

. i making his choice of electing law-breakers as A
law-makers."
7. During the pendency of the appeal preferred by the
Union of India against the directions given by Delhi High Court
in the writ petition filed by Association for Democratic Reforms
8
and another, the Representation of the People Act, 1951 (for
short 'the Act') was amended by Amending Act No. 3 of 2002
and Section 33A and Section 338 were inserted in it. People's
1 Union for Civil Liberties challenged the vires of Section 338 by
which it was declared that notwithstanding anything contained
in any judgment, decree or order of any court or any direction or C
any other instruction issued by the Election Commission, no
candidate shall be liable to disclose or furnish any such
information, in respect of his election, which is not required to
be disclosed or furnished under the Act or the rules made
thereunder. A three-Judge Bench comprising of M.B. Shah, P. D
Venkatarama Reddy and D.M. Dharmadhikari, JJ. expressed
separate but concurring opinions and declared Section 338 to
.be unconstitutional - People's Union for Civil Liberties v.
Union of India [(2003) 4 sec 399]. M.B. Shah, J. who was a
party to the earlier judgment in Union of India v. Associ(ition E
for Democratic Reforms and another (supra), referred to the
judgments in N.P. Ponnuswami v. Returning Officer [1952
SCR 218], G. Narayanaswami v. G. Pannerselvan [(1972) 3
~ SCC 717], C. Narayanaswamy v. C.K. Jaffer Sharief [(1994)
Supp 3 SCC 170] and observed: F
"It has to be stated that in an election petition challenging
the validity of election, rights of the parties are governed
by the statutory provisions for setting aside the election
but this would not mean that a citizen who has right to be
a voter and elect his representative in the Lok Sabha or G
Legislative Assembly has no fundamental right. Such a
voter who is otherwise eligible to cast vote to elect
his representative has statutory right under the Act
to be a voter and has also a fundamental right as
enshrined in Chapter Ill. Merely because a citizen is H
\

930 SUPREME COURT REPORTS [2009] 2 S.C.R.

A a voter or has a right to elect his representative as
per the Act, his fundamental rights could not be
abridged, controlled or restricted by statutory
provisions except as permissible under the
Constitution. If any statutory provision abridges
B fundamental right, tha.t statutory provision would be
void. It also requires to be well understood that democracy
based on adult franchise is part of the basic structure of
the Constitution. The right of an adult to take part in election
process either as a voter or a ·candidate could be restricted
c by a valid law which does not offend constitutional
provisions."
Shah, J. then held that Section 338 was enacted for doing
away with the effect of judgment in Union of India v.
Association for Democratic Reforms (supra) and this could
D not have been done by the legislature. Conclusions (D) and (E)
recorded by Shah, J. which have bearing on this case are
extracted below:
"(D) The contention that as there is no specific fundamental
right conferred on a voter by any statutory provision to
E
know the antecedents of a candidate, the directions given
by this Court are against the statutory provisions is, on the
face of it, without any substance. In an election petition
challenging the validity of an election of a particular
candidate, the statutory provisions would govern respective
F rights of the parties. However, voters' fundamental right
to know the antecedents of a candidate is
independent of statutory rights under the election
law. A voter is first citizen of this country and apart
from statutory rights, he i~ having fundamental rights
G co.nferred by the Constitution. Members of a
democratic society should be sufficiently informed
so that they may cast their votes intelligently in
favour of persons who are to govern them. Right to
vote would be meaningless unless the citizens are
H well informed about the antecedents of a candidate.
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 931
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]

·~
There can be little doubt that exposure to public gaze A
and scrutiny is one of the surest means to cleanse
our democratic governing system and to have
competent legislatures.
(E) It is established that fundamental rights
B
themselves have no fixed content, most of them are
empty vessels into which each generation must pour
its content in the light of its experience. The attempt
of the Court should be to expand the reach and
" ambit of the fundamental rights by process of judicial
interpretation. During the last more than half a c
decade, it has been so done by this Court
consistently. There cannot be any distinction between
the fundamental rights mentioned in Chapter Ill of the
Constitution and the declaration of such rights on the basis
.. of the judgments rendered by this Court." D

P. Venkatarama Reddi, J. agreed with M.B. Shah, J. that
Section 338 does not pass the test of constitutionality and
proceeded to observe:
"In a democratic republic, it is the will of the people that is E
paramount and becomes the basis of the authority of the
Government. The will is expressed in periodic elections
based on universal adult suffrage held by means of secret
• ballot. .. . Nothing is therefore more important for
sustenance of democratic polity than the voter making an F
intelligent and rational choice of his or her representative.
For this, the voter should be in a position to effectively
formulate his/her opinion and to ultimately express that
opinion through ballot by casting the vote. The
concomitant of the right to vote which is the basic G
postulate of democracy is thus twofold: first,
formulation of opinion about the candidates and
second, the expression of choice by casting the vote
in favour of the preferred· candidate at the polling
....
-.
booth .... The voter/citizen should have at least the basic
H
932 SUPREME COURT REPORTS [2009] 2 S.C.R.

A information about the contesting candidate, such as his r ";-
involvement in serious criminal offences .... An enlightened
and informed citizenry would undoubtedly enhance
democratic values. Thus, the availability of proper and
relevant information about the candidate fosters and
B promote~ the freedom of speech and expression
both from th~ point of view of imparting and receiving
the information .... I would say that such information will
certainly be conducive to fairness in election process and
integrity in public life. The disclosure of information would "
c facilitate and augment the freedom of expression both
from the point of view of the voter as well as the media
through which the information is publicised and openly
debated."
Reddi, J. referred to the judgment in Union of India v.
D Association for Democratic Reforms and another (supra), ~

dictionary meanings of the word 'expression' and reiterated that
"freedom of voting by expressing preference for a candidate is
nothing but freedom of expressing oneself in relation to a matter
of prime concern to the country and the voter himself'. His
E lordship then noted that in Jyoti Basu v. Debi Ghosal [(1982)
1 SCC 691 ], the Court had treated the right to elect as neither a
fundamental right nor a common right but pure and simple
statutory right and expressed his view in the following words:
"With great reverence to the eminent Judges, I would like
....
F to clarify that the right to vote, if not a fundamental right, is
certainly a constitutional right. The right originates from
the Constitution and in accordance with the constitutional
mandate contained in Article 326, the right has been
shaped by the statute, namely, the RP Act. That, in my
G understanding, is the correct legal position as regards the
nature of the right to vote in elections to the House of the i(

People and Legislative Assemblies .. It is not very accurate
to describe it as a statutory right, pure and simple. Even
with this clarification, the argument of the learned Solicitor
H General that the right to vote not being a fundamental
/

PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 933
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]

right, the information which at best facilitates meaningful A
exercise of that right cannot be read as an integral part of
any fundamental right, remains to be squarely met. Here,
a distinction has to be drawn between the
conferment of the right to vote on fulfilment of
requisite criteria and the culmination of that right in B
the final act of expressing choice towards a particular
candidate by means of ballot. Though the initial right
cannot be placed on the pedestal of a fundamental
right, but, at the stage when the voter goes to the
polling booth and casts his vote, his freedom to c
express arises. The casting of vote in favour of one
or the other candidate tantamounts to expression of
his opinion and preference and that final stage in
the exercise of voting right marks the
accomplishment of freedom of expression of the 0
voter. That is where Article 19(1 )(a) is attracted.
Freedom of voting as distinct from right to vote is
thus a species of freedom of expression and
therefore carries with it the auxiliary and
complementary rights such as right to secure E
information about the candidate which are
conducive to the freedom."
Reddi, J. then proceeded to record 9 Conclusions of which
Conclusion Nos.1 and 2 read as under:
"(1) Securing information on the basic details concerning F
the candidates contesting for elections to Parliament or
the State Legislature promotes freedom of expression
and therefore the right to information forms an integral
part of Article 19(1 )(a). This right to information is, however,
qualitatively different from the right to get information about G
public affairs or the right to receive information through
the press and electronic media, though, to a certain extent,
there may be overlapping.

(2) The right to vote at the elections to the House of the H
934 SUPREME COURT REPORTS [2009] 2 S.C.R.

A People or Legislative Assembly is a constitutional right
but not merely a statutory right; freedom of voting as distinct
from right to vote is a facet of the fundamental right
enshrined in Article 19(1 )(a). The casting of vote in favour
of one or the other candidate marks the accomplishment
B of freedom of expression of the voter."
D.M. Dharmadhikari, J. agreed with most of the
conciusions recorded by M.B. Shah and P.V. Reddi, JJ. and
observed:
c "Democracy based on "fre~ and fair elections" is
considered as a basic feature of the Constitution in the
case of Kesavan.anda Bharati. Lack of adequate legislative
will 'to fill the vacuum in law for reforming the election
process in accordance with the law declared by this Court
D in the case of Assn. for Democratic Reforms obligates
this Court as an important organ in constitutional process
to intervene.
In my opinion, this Court is obliged by the Constitution to
intervene because the legislative field, even after the
E passing of the Ordinance and theAmendmentAct, leaves
a vacuum. This Court in the case of Assn. for.Democratic
Reforms has determined the ambit of fundamental "right
of information" to a voter. The law, as it stands today after
amendment, is deficient in ensuring "free and fair
F elections". This Court has, therefore, found it necessary to
strike down Section 33-B of the Amendment Act so as to
revive the law declared by this Court in the case of Assn.
for Democratic Reforms.
With these words, I agree with Conclusions (A) to (E) in
G the opinion of Brother Shah, J. and Conclusions (1), (2),
(4), (5), (6), (7) and (9) in the opinion of Brother P.V. Reddi,
J."

8. By the above noted two judgments, a ·new dimension
H was given to the right of sovereign i.e. the people to make choice
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 935
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]

of their representatives after knowing the assets and A
~
-I 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 the elector's right !o have
complete information about the candidates and then express B
his choice for a particular person, are necessary concomitant
of the freedom of expression guaranteed under Article 19(1)(a).
9. Now by means of this petition, People's Union for Civil
"' Liberties (petitioner no.1 ), which has been fighting for protection
of human rights and civil liberties of the people for last three c
decades and Era Sezhiyan (petitioner no.2), who is one of the
founder members of Dravida Munnetra Kazhagam (DMK) and
a well known parliamentarian seek to add another dimension
to the sovereign's right to express his choice for the candidate
at an election by contending that right to vote in secrecy includes D
" the right of negative voting. They have prayed for striking down
Rules 41 (2) and 49-0 of the Rules and also for issue of a
direction to the Commission to make appropriate provision in
the ballot papers and Electronic Voting Machines (EVMs) so
as to enable the voters to exercise their right of negative voting E
and also ensure that exercise of this right is kept secret. To
support their plea that secrecy of ballot a sine qua non for
exercise of the right of freedom of expression guaranteed to
.. the electors under Article 19(1)(a) of the Constitution, the
petitioners have relied upon Article 21 (3) of Universal F
Declaration of Human Rights which were adopted by the General
Assembly of the United Nations in December, 1948, Article 25(b)
of the International Covenants on Civil and Political Right and
the judgments of this Court in Mohinder Singh Gill v. Chief
Election Commissioner (supra) and Union of India v. G
Association for Democratic Reforms and another (supra).
They also referred to letter dated 10.12.2001 in which the
"' Commission has advocated in favour of the electors' right of
negative voting. The petitioners have pleaded that Rules 411;:md
49-0 of the Rules are violative of Articles 19(1 )(a) and 21 of the
H
i

.'

936 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Constitution and Section 128 of the Act inasmuch as the ~

provisions contained therein violate secrecy of the vote and ""
voter. It is also the petitioners' case that in exercise of its power .-
under Article 324 of the Constitution, the Commission can direct
modification of the exis~ing EVMs to enable the voters to
B exercise their right of negative voting.
10. In the counter-affidavit filed on behalf'of the Union of
India, the very maintainability of the writ petition has been
questioned on the ground that the petitioners have not claimed
'""
violation of any of their fundamental rights enshrined in Part Ill of
c the Constitution. The stand of Union of India is that the right of
the elector to vote is a statutory right and n.ot a fundamental
right and, therefore, the writ petition filed under Article 32 cannot
be entertained. The further case of the Union of India is that the
right of an elector to vote does not include the right of negative
r
~
D voting and, therefore, Rules 41 (2) and 49-0 cannot b~ dubbed } f-

as unconstitutional or ultra vires the provisions of Section 128 t
of the Act.
)

11. On behalf of the Commission, its Secretary, Shri K.F )
)
Wilfred has filed an affidavit supporting the cause of the t
E
petitioners. In paragraphs 3(i) and (ii) of his affidavit, Shri Wi)fred
has averred that the-elector may like to refrain from casting vote
for several reasons including the one that he does not consider
any of the candidates as deserving of his vote and that this can

F
be expressed either by staying away from the polling or by going ""
to the polling station and informing the Presiding Officer of his ~
intention not to vote or by positively discarding all the candidates.
According to Shri Wilfred, the Election Commission had
considered. the issue "of. providing a separate panel in the

G
Balloting Unit of the 6VMs, so that the elector can reject all the
candidates withoutdisclbsing his identity and to this effect_letters
...
'
dated 10.~2.2001 and 5.7.2004 were sent to the Government .,
of India, Ministry of Law, Justice and Company Affairs but
necessary amendment has not been carried out in the Act and
Rules. ...__

H
t
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 937
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]
12. Shri Rajinder Sachar, learned senior counsel appearing A
. ... for the petitioners argued that the right of an elector to vote at
an election in secrecy includes the right of negative voting qua
all candidates and the. Commission is duty bound to provide
appropriate mechanism in the EVMs for effective exercise of
that right. Learned senior counsel referred to the judgments in B .
Union of India v. Association for Democratic Reforms
(supra) and People's Union for Civil Liberties (PUCL) v.
Union of India (supra) and argued that when the Court has
already recognized the right of an elector to know the
antecedents of the candidates and freely exercise his franchise c
as an integral part of the fundamental right guaranteed under
Article 19(1 )(a) of the Constitution, Rules 41 (2) and 49-0 of the
Rules are liable to be declared unconstitutional because they
violate the elector's right to vote in secrecy. Shri Sachar
submitted that the Court should direct the Commission to take 0
effective and adequate measures to protect the right of an
elector not only to refuse to cast vote after going to the polling
booth but also the right to indicate positive negation for all
candidates and that too in secrecy because adult suffrage has
been treated as an essential component of democracy. Learned E
senior counsel pointed out that even though some of the
provisions contained in the Act and Rules recognise the
importance of secrecy of ballot, Rules 41 (2) and 49-0 destroy
the freedom of an elector when he refuses to vote in favour of.
any candidate, inasmuch as the agents of the candidates are
able to easily identify the person who refuses to cast·vote. As F
regards, the objection raised by respondent no.1 to the locus of
the petitioners to file petition under Article 32 of the Constitution,
Shri Sachar submitted that in view of two judgments of three-
Judge Benches whereby the right of an elector to make choice
of the candidate has been treated as fundamental r-ight G
guaranteed under Article 19(1 )(a) of the Gonstitution, the
~ petitioners are entitled to seek intervention of the Court for
striking down the impugned rules and for issue of a mandamus
to the Commission to take steps under Article 324 for effective
exercise of the right of negative voting vested in the electors. H
938 SUPREME COURT REPORTS [2009) 2 S.C.R.

A 13. Ms. Meenakshi Arora, learned counsel for the
Ir
Commission submitted that in view of the judgments of this Court
in Union of India v. Association for Democratic Reforms
(supra) and People's Union for Civil Liberties (PUCL) and
another v. Union of India and another (supra), the petitioners
B have the right to challenge the constitutionality of the impugned
rules and seek direction for appropriate modification in the
EVMs to enable the electors to exercise their. fundamental rights
of negative voting. Ms. Arora argued that if the electors right to
know the assets and antecedents of the candidates and then '1'

c make their choice is a fundamental right guaranteed under
Article 19(1)(a), there is no rationale to exclude the right of
negative voting from the purview of that Article. Learned counsel
highlighted the distinction between the right to elect and physical
exercise of the right to vote by pointing out that while the former \
t
falls in the domain of statutory right, the latter is a necessary
D
concomitant of the freedom of expression guaranteed under ;rl

Article 19(1 )(a). Ms. Arora then submitted that if the rules are
amended or the Court so directs, the Commission can take
steps to modify existing EVMs to enable the electors to exercise
their right of negative voting in secrecy.
E
14. Shri Amarendra Sharan, learned Additional SoliCitor
General relied upon the judgments of the Constitution Benches
in Ponnuswami's case and Kuldip Nayar v. Union of India
[(2006) 7 sec 1] and argued that the writ petition should be
F dismissed as not maintainable because the right to vote at an
election has not been treated as a fundamental right guaranteed
under Part Ill of the Constitution. He submitted that the right to
elect and to vote can, at best be regarded as statutory right
available to an elector under the Act but the same cannot be
G treated as flowing from the right to freedom oJ expression
guaranteed under Article 19(1 )(a) of the Constitution. Shri
Sharan pointed out that the framers o.t the Constitution have ft
recognized the importance of secr~cy of ballot by making
specific provision to that effect in the election of President and
Vice-President under Articles 55· and 66 respectively, but no
H
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 939
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]

such provision has been made in Article 326 which postulates A
election to the House of People and the Legislative Assemblies
on the basis of adult suffrage and argued that the right of
negative voting .in secrecy cannot be read into Article 326 of the
Constitution by implication. Learned counsel submitted that
secrecy of ballot is effectively protected by Rule 49-0 of the B
Rules and violation thereof is punishable under Section 128(2)
of the Act and the impugned provisions cannot be nullified by
assuming that the same are violative of Article 19(1 )(a) of the
Constitution. Learned Additional Solicitor General lastly
submitted that Article 324 cannot be used by the Commission c
for giving new dimension to the secrecy of ballot which is not
envisaged by the Constitution and the Act.
'·
15. We have given our most anxious consideration to the
entire matter. In view of the objection raised by the learned
Additional Solicitor General, we shall first deal with the issue of D
maintainability of the writ petition. In last five decades, the Courts
of this country have repeatedly held that democracy is one of
the basic features of the Constitution and free and fair election
based on uoiversal adult suffrage is an essential component of
democracy. Till 1996, this Court treated the right to elect as a E
statutory right only because it did not have the occasion to
consider the issue in the backdrop of concerted attempts made
by the interested quarters to corrupt and hijack the process of
.i
election and participation in election of persons with devious
antecedents. In Jyoti Basu v. Debi Ghosal (supra), this Court F
while allowing the appeal filed by appellant Jyoti Basu, who was
elected to the House of People from 19-Barrackpore
Parliamentary constituency against the order of the High Court
refusing to strike down the names of some of the ministers of
the West Bengal Government, who were impleaded as parties G
to the election petition, referred to the judgments in N.P.
~
Ponnuswami v. Returning Officer (supra) and Jagan Nath
v. Jaswant Singh [1954 SCR 892] and held:
''The right to elect, to be elected and to dispute an election
~
are neither fundamental rights nor common law rights but H
940 SUPREME COURT REPORTS [2009] 2 S.C.R.

A are simply statutory rights and therefore are subject to
statutory limitations. Similarly, an election petition is not
an action at common law, nor in equity but is a statutory
proceeding to which only statutory rules apply. The statute
concerned with the election matters is the Representation
B of the People Act which is a complete and self-contained
code and within it must be found any rights claimed in
relation to an election or an election dispute."
In Rama Kant Pandey v. Union of. India [(1993) 2 SCC •
438] a three-Judge Bench examined challenge to the
c Representation of the People (Amendment) Ordinance, 1992
(Ordinance No.1 /1992) and the Representation of the People
(Second Amendment) Ordinance, 1992 (Ordinance No.2/1992) (,-
by which provision for countermanding elections in certain
circumstances was amended and·· period of twenty days
D specified in Section 30 was reduced to fourteen days. It was
argued on behalf of the petitioner that the voters' right to choose
their representative for a particular constituency cannot be
whittled down by the amendments. While rejecting the argument,
the Court recorded the following preface:
E "Before proceeding to examine the merits of the argument
addressed on behalf of the petitioner it will be useful to
note that the right to vote or to stand as a candidate for
election is neither a fundamental nor a civil right. In England
also it has never been recognised as a common law right."
F 16. Faced with serious criticism of attempts made by
...
vested interest to corrupt the process of election by clandestinely
providing funds in the form of black money to the political parties,
Parliament amended the Companies Act, Income-Tax Act and
the Representation of the People Act. The object of these
G amendments was to bring transparency in election-funding.
i
Common Cause, a society registered under the Societies "
Registration Act filed petition under Article 32 of the Constitution
for issue of a direction to the political parties to annually file
return of income. A two-Judge Bench examined the issue at '-.

H some length and declared that political parties are under a
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 941
V. UNION OF INDIAAND ANOTHER [G.S. SINGHVI, J.]
statutory obligation to file return in accordance with the provisions A
of the Income Tax Act. The Court also directed the Ministry of
Finance to mflke investigation/enquiry against each of the
defaulting political parties and initiate necessary action including
penal action under Section 276-CC of the Income Tax Act. While
dealing with the powers of the Commission under Article 324, B
the Court held as under:
"Superintendence and control over the conduct of election
by the Election Commission envisaged under Article 324
include the scrutiny of all expenses incurred by a political
party, a candidate or any other association or body of C
persons or by any individual in the course of the election.
The expression "Conduct of election" in Article 324 of the
Constitution of India is wide enough to include in its sweep,
the power of the Election Commission to issue - in the
process of the conduct of elections - directions to the D
effect that the political parties shall submit to the
Commission for its scrutiny, the details of the expenditure
incurred or authorised by the political parties in connection
with the election of their respective candidates."
E
17. After six years came the judgment in Union of India
v. Association for Democratic Reforms (supra) which can
be termed as an important judicial benchmark in the field of
electoral reforms. In that judgment, the Court declared that where
law is silent, Article 324 is a reservoir of power for the
Commission and the same can be used for free and fair election; F
that the Commission can fill in the vacuum till there is a legislation
on the subject to meet the particular situation or contingency; to
maintain purity of election and to bring transparency in the
process of election, the Commission can ask the candidate
about the expenditure incurred by the political parties. The Court G
further held that the elector has right to know full particulars of a
candidate who is to represent him in legislature and that·under
Article 19(1 )(a) voter's right of speech and expression in case
of election would include casting of votes. Proposition No.7
extracted hereinabove contains this enunciation of law. · H
942 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 18. The ratio of the judgment in Union of India v. ...
Association for Democratic Reforms (supra) was reiterated
by another three-Judge Bench· in People's Union for Civil
Liberties v. Union of India (supra). Two of the Judges
constituting the Bench, namely, M.B. Shah and P. Venkatarama
B Reddi, JJ. recorded separate detailed opinions. Shah, J. held
that an elector who is otherwise eligible to cast vote and to elect
his representaUve has statutory right under the Act to be a voter
and has.also a fundamental right as enshrined in Chapter Ill.
Reddi, J. drew fine distinction between conferment of the right
c to vote on fulfillment of requisite criteria and the culmination of
that righfin the final act of exercising choice .towards a particular
candidate by means of ba:llot and :held .that though the initial
right cannot be placed on the .pedestal of a fundamental right,
but casting -Of a vote in favour .of one or the .other candidate
0 tantamounts to expression of his opinion .and preference and
exercise of that right marks accomplishment ·of freedom of
expression of voter where ArtiCle 19(1)(a) is attracted. In the
.opinion .of Red di, J., freedom ·of ·voting as .distinct fr.om the right
to vote :is a species of freedom of expression and therefore
E carries with it the auxiliary and complementary rights such as
right to ·s·ecure information about the .candidate which are
conducive to the freedom. The 3rd Member.Q'f the Bench, namely,
D .M. Dharmadhikari, J. ·expressed 'his a:greement with the ·other
two Judges.
F 19. ·1n Ku·ldip Naya,r v. Union .of India ,(supra) ·on which
reUanoe has 'been :p:laced :by 'the 4e.amed Addi.tional Solicitor
General, the Constitution Bench examined the petitioner's
:Challenge to the Representation of People (Amendment) Act
40 of 2003 by which the requirement:of,domicile in the ,concerned
G State for getting elected to the Oouncil .of States was deleted.
The Court aJso examined validity of the amendments in Sections
59, 94 and 128 of the Act by which open ballot system was
introduced for ·election to the Council of States. According to
the petitioner. this system violated the principle of secrecy, which
H is the essence of free and fair elections. While dealing with the
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 943
V. UNION OF !NOIA AND ANOTHER [G.S. SINGHVI, J.]

~. question whether deletion of the requ_irement of domicile was A
ultra vires the Constitution, the Court adverted to the concept of
federalism, role of Upper House - Council of States vis-a-vis
House of People and held that the Amending Act No.40 of 2003
does not violate the provisions of the Constitution. The Court
then considered the issue relating to violation of secrecy of ballot, B
referred to the amendments made in Sections 59, 94 and 128
of the Act and held that the requirement of maintenance of
secrecy of voting is now made subject to exception qua election
~
to the Council of States. The Constitution Bench then reiterated
that democracy is a basic feature of the Constitution and the c
edifice of democracy rests on a system of free and fair election,
referred to Keshvananda Bharti v. State of Kerala [1973 (4)
SCC 225], Smt. Indira Nehru Gandhi v. Shri Raj Narain and
another (supra), Mohinder Singh Gill v. Chief Election
Commissioner (supra), S. Raghubir Singh Gill v. S
~ D
Gurcharan Singh Tohra [1980 Supp SCC 53], Kihoto
Hollohan v. Zachillhu [1992 Supp. (2) SCC 651], Union of
India vs. Association for Democratic Reforms (supra),
People's Union for Civil Liberties v. Union of India (supra)
and then proceeded to consider whether right to vote is a
E
constitutional right or a fundamental right. On this aspect of the
matter, the Constitution Bench referred to paragraphs 42, 46.4,
46.5, 46. 7 of the judgment in Union of India vs. Association
. for Democratic Reforms (supra) and noted the views
expressed in Jyoti Basu v. Debi Ghosal (supra), People's
Union for Civil Liberties v. Union of India (supra) and Rama F
Kant Pandey v. Union of India (supra). In para 356, the Court
extracted para 62 of the judgment of Shah, J. in People's Union
for Civil Liberties v. Union of India (supra). In paragraphs
356 to 359, the Court extracted the observations of
P.Venkatarama Reddi, J. In para 360, the Court referred to the G
observations made by D.M. Dharamadhikari, J. and declined
to accept the argument of the petitioners that as per majority
view in People's Union for Civil Liberties v. Union of India
-i
(supra), right to vote is a constitutional right besides it being a
..... facet of fundament.al right under Article 19(1 )(a) of the H
944 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Constitution. For the sake of convenience, paragraphs 361 to
364 of the judgment in Kuldip Nayar v. Union of India (supra)
are extracted below:-
"361. The argument of the petitioners is that the majority
view in People's Union for Civil Liberties, therefore, was
B
that a right to vote is a constitutional right besides that it
is also a facet of fundamental right under Article 19(1 )(a)
of the Constitution.

362. We do not agree with the above submission. It is
c 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 Basu v.
Debi Ghosal that a right to elect, fundamental though it is
to democracy, is neither a fundamental right nor a common
D law right, but pure and simple, a statutory right.
363. Even otherwise, there is no basis to con'tend that the
right to vote and elect representatives of the State in the
Council of States is a constitutional right. Article 80(4)
merely deals with the manner of election of the
E representatives in the Council of States as an aspect of
the co"mposition of the Council of States. There is nothing
in the constitutio~al provisions declaring the right to vote
in such election as an absolute right under the Constitution.

364. Be that as it niay, the moot contention that has been
F raised by the petitioners is that the election of Members
of the Council of States is provided for in the Constitution
and, therefore, is a part of the Constitution and thatit is an
· inherent requirement of the principle of free and fair election
that the right to vote be invariably accompanied by the
G · ~right of secrecy of vote so as to ensure that the freedom
of expression through vote is real."
20. We have carefully read paragraphs 349 to 364 of the
, afore.said judgment, which are found under the head Right to \;-
H . Vote -A Constitutional I Fundamental Right and find that even <-
PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER 945
V. UNION OF INDIA AND ANOTHER [G.S. SINGHVI, J.]

· ~ though the Constitution Bench did not overrule or discard the A
ratio of the two three-Judges Bench judgments in Union of India
v. Association for Democratic Reforms (supra) and
People's Union for Civil Liberties v. Union of India (supra),
the opening line of para 362 tend to create a doubt whether the
right of voter to exercise his choice for the candidate is a B
necessary concomitant of the voter's freedom of expression
guaranteed under Article 19(1 )(a) of the Constitution. Therefore,
this issue needs a clear exposition of law by a larger Bench.
We are further of the view that width and amplitude of the power
of the Commission under Article 324 needs further consideration c
by a larger Bench in the light of the judgments of this Court
whereby the elector's right to be informed about the assets and
antecedents of the persons seeking election to the legislature
has been duly recognized.
21. The file of the case may, therefore, be placed before D
Hon'ble the Chief Justice for appropriate order.

GN. Matter referred to larger Bench