THE NOTA CASE BY ABHISHEK JAIN

INTRODUCTION

During the British era, The Right to Vote was only vested in individual of a certain class. In some societies, only man have the right to vote but with the passage of time things changed. Now, both men and women vote easily. In the early phase, mem and women had to face a long struggle before they were allowed to vote in public election. In Indian first General Election, Indian were very illiterate and poor. So, it is very difficult for Election Commission to tell the Indian citizen how to vote. In that case Election Commission appointed 1,60,000 officials for free and fair election. Name of 4 lakhs women were not mentioned in the list of the election. The first General Election of India is also known as the “Biggest Gamble in Indian History” or declared it as “Biggest test with Democracy”. In India, at the time of British self-governance was introduce the right to vote was vested only with people who belonged to upper caste or we can say that rich or upper class. With the time and a long struggle for freedom was the concept of adult suffrage i.e. The Right to Vote was provided to men and women equally, rich or poor, illiterate or literate equally by the adoption of India Constitution. However, a new dimensions came into the political sphere where a question was arises that whatever there shall be right not to vote for any of the candidate who were contesting the elections and the choice remained a secret. This is the dimensions that was explored by the Supreme Court of India in the instant landmark Judgement.

FACTS

The people’s Union for Civil Liberties is an Non- Governmental Organisation which has continuously petitioned the court on the matter of public interest. In this case, The NGO had asked the court to look into the election rules and regulations and also option be added to in the ballot paper and Electronic Voting Machine a not to vote category to keep the vote secret. Rule 41(2) & (3) and 49-O of the conduct of Election Rules, 1961 although to provide that a person can choose not to vote. However, there was no secrecy maintained as to his identity.

ISSUES

The issue was that whether Rule 41(2) & (3) and 49-O of the Rules violates the secrecy of voting which is fundamental to the free and fair election and is required to be maintained as per the Section 128 of the Representative of the People Act, 1951 and Rules 39 and 49- M of the rules.

PETITIONERS ARGUMENTS

It was contended that a election has a right not to vote but no secrecy is maintained. Not having voted under Rule 41(2) & (3) and also Rule 49- O of the Rules. If a elector decides not to cast his vote, the Presiding Officer records this by the way of an entry in Form 17 A and also the signature or thumb impression of such a elector is recorded. In this, there is a chance of such a person’s identity getting compromised. Rules 41(2) & (3) and also Rule 49-O were against A. 19(1) (a) and A. 21 of the Constitution of India It was also prayed that directions be issued for another button in the Electronic Voting Machine by the name of “ None of the Above”(NOTA). This results in people are able to exercise their right to vote and also maintain their secrecy.

RESPONDENTS ARGUMENTS

It was argued that Right to Vote was neither a Constitutional nor a Fundamental or a Common Law Right. It was declare a Statutory Right and various law case are citied where Courts had stopped short of giving Right to Vote – A Fundamental Right. It was further argued that, voters can exercise his Right to Vote free and fearlessly. Secrecy of ballot is a principle which has been formulated that candidates and their representatives do not get to know that in whose favour an individual voter has voted. It was also contended that Right of Secrecy was not given to those voter who cannot extended to individual who had not voted. Right of secrecy was given only those voters who exercised their Right to Vote. It was also said that an election as per Section 2(d) of the Act was meant to fill a seat and not to treat it as not to fill a seat.

JUDGEMENT

A Democratic Country is one which respect both human and political rights. And India is also a Democratic Country in which the President of India is the Head of the State and Prime Minister is the Head of the Government. It was seen that in order to survive it was very important that the best individuals be elected to seen the country. If there was a option of NOTA it means that political parties to work hard and nominate deserving and better people. Free and fair elections was a basic feature of our India Constitution and protecting the elector’s identity and maintain secrecy is integral for the same. A distinction was made between the voter who casts his vote and the voter who chooses no to would be in violation of Article 14 of the Constitution. Secrecy is to be maintained for both categories of person and therefore giving a right of not to vote to an individual while protecting the Right of Secrecy is extremely important for progress and prosper. The Court came to the conclusion and directed the Election Commission to incorporate the NATO button in the Electronic Voting Machine. This is a phased manner. This conclusion made when Court seek that there are large number of Countries in the World which using negative or protest voting in their elections. Thus, the Supreme Court held that Rules 41(2) & (3) and 49-O of the Rules were ultra wires to Section 128 of the Act and also Article 19 (1) (a) of the Constitution of India.

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