Gujarat High Court
Jagte Raho Party Thro President Praful K ... vs Minsitry Of Law & on 22 February, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
JAGTE RAHO PARTY THRO PRESIDENT PRAFUL K DESAI....Applicant(s)V/SMINSITRY OF LAW & JUSTRICT C/WPPIL/251/2012 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 251 of 2012 With CIVIL APPLICATION NO.
13081 of 2012 In WRIT PETITION (PIL) NO.
251 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ JAGTE RAHO PARTY THRO PRESIDENT PRAFUL K DESAI....Applicant(s) Versus MINSITRY OF LAW & JUSTRICT & 2....Opponent(s) ================================================================ Appearance:
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/02/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This Application in the nature of a Public Interest Litigation has been filed by one Praful K.Desai in his capacity as the President of Jagte Raho Party , registered with the Election Commission of India, New Delhi, bearing Registration No.56/154/2010 PPS-1 with effect from 9th November 2011, praying for the following reliefs :-
The Central Election Commission be directed to make provision for No Vote button in Electronic Voting Machines (EVMs) to be used in the ensuing Gujarat Assembly Elections to be held in December 2012, or in the alternative;
The Ministry of Law and Justice, Government of India, be directed to dispose of the issue regarding right to vote for no candidate, so as to enable the Election Commission of India to introduce button for right to vote for no candidate in the EVM.
The Election Commission, New Delhi, be directed to make provision to have button in the EVMs so that the voters in the Assembly Election of 2012 desirous to exercise the right to vote for no candidate may be able to do so.
The Gujarat Election Commission be directed to issue a notification/clarification in an elaborate manner about the procedure to be followed by the voters to exercise right to vote for no candidate.
Directions be issued to train the booth representatives about the procedure for the exercise of the right to vote for no candidate.
Directions be issued to give wide publicity through print and electronic media and other means to make the citizens or the voters aware about Rule 49-O of the Conduct of Elections Rules, 1961 and the procedure to be followed for exercising such right.
Case of the Petitioner :
According to the petitioner, the system of casting vote through ballot paper has been now replaced by Electronic Voting Machine. According to the petitioner, the elections of State Assemblies or Parliament are governed by the Conduct of Elections Rules, 1961. Rule 49-O of the said Rules is a provision which a voter could invoke if he decides not to vote for any candidate after his electoral roll number is duly entered in the register of voters in Form 17A.
The grievance of the petitioner is two-fold : first, people have no idea about Rule 49-O. In short, according to the petitioner, who is appearing as a party-in-person, the citizens should be made aware of their right of not casting any vote in favour of any candidate contesting the election, and secondly, the procedure which has been prescribed so far as Rule 49-O is concerned is such that secrecy of a person who wishes to exercise his right of casting vote in favour of none of the candidates is not maintained, as a result of which, even if a citizen is of the opinion that none of the candidates contesting the election deserve to be elected, but because of fear of being identified having exercised the option as provided in Rule 49-O, there would hardly be any citizen who will come forward to say that none of the candidates deserve to be given vote.
In order to appreciate the two points which have been raised in this petition, it will be profitable to look into few provisions of the Conduct of Elections Rules, 1961 :41
: Spoilt and returned ballot papers -(1)
..... ..... ......(2)
If an elector after obtaining a ballot paper decides not to use it, he shall return it to the Presiding Officer, and [the ballot paper so returned and the counterfoil of such ballot paper] shall be marked as Returned: cancelled by the Presiding Officer.
49L : Procedure for voting by voting machines -(1)
Before permitting an elector to vote, the Polling Officer shall-
(a) record the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters in Form 17A.
(b) obtain the signature or the thumb impression of the elector on the said register of votes; and
(c) mark the name of the elector in the marked copy of the electoral roll to indicate that he has been allowed to vote:
Provided that no elector shall be allowed to vote unless he has his signature or thumb impression on the register of voters.(2)
Notwithstanding anything contained in sub-rule (2) of rule 2, it shall be necessary for any Presiding Officer or Polling Officer or any other officer to attest the thumb impression of the elector on the register of voters.
49M.
Maintenance of secrecy of voting by electors within the polling station and voting procedures.-(1)
Every elector who has been permitted to vote under rule 49-L shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.(2)
Immediately on being permitted to vote the elector shall proceed to the Presiding Officer or the Polling Officer in-charge of the control unit of the voting machine who shall, by pressing the appropriate button on the control unit, activate the balloting unit; for recording of elector's vote.(3)
The elector shall thereafter forthwith-
(a) proceed to the voting compartment;
(b) record his vote by pressing the button on the balloting unit against the name and symbol of the candidate for whom he intends to vote; and
(c) come out of the voting compartment and leave the polling station.(4)
Every elector shall vote without undue delay.
(5)No elector shall be allowed to enter the voting compartment when another elector is inside it.
(6)If an elector who has been permitted to vote under Rule 49-L or Rule 49-P refuses after warning given by the Presiding Officer to observe the procedure laid down in sub-rule (3) of the said rules, the Presiding Officer or a Polling Officer under the direction of the Presiding Officer shall not allow such elector to vote.
(7)Where an elector is not allowed to vote under sub-rule (6), a remark to the effect that voting procedure has been violated shall be made against the elector's name in the register of voters in Form 17-A by the Presiding Officer under his signature.
49O.
Elector deciding not to vote.- If an elector, after his electoral roll number has been duly entered in the register of voters in Form17-A and has put his signature or thumb impression thereon as required under sub-rule (1) of Rule 49L, decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and the signature or thumb impression of the elector shall be obtained against such remark.
49Q.
Presiding Officer's entry in the voting compartment during poll.-
(1) The Presiding Officer may whenever he considers it necessary so to do, enter the voting compartment during poll and take such steps as may be necessary to ensure that the balloting unit is not tampered or interfered with in any way.(2)
If the Presiding Officer has reason to suspect that an elector who has entered the voting compartment is tampering or otherwise interfering with the balloting unit or has remained inside the voting compartment for unduly long period, he shall enter the voting compartment and take such steps as may be necessary to ensure the smooth and orderly progress of the poll.
(3)Whenever the Presiding Officer enters the voting compartment under this rule, he shall permit the polling agents present to accompany him if they so desire.
The petitioner, party-in-person, vehemently submitted that in the past few years the system of casting vote by the use of mark in the ballot paper has now been replaced by using the button in the EVM. However, the procedure for elector deciding not to vote (reference Rule 49-O) has not been changed and as a result Rule 49-M relating to maintenance of secrecy of voting by electors within the polling station and voting procedures is violated.
The procedure which is followed under Rule 49-O of the Rules, when an elector informs that he/she wants to invoke the provisions of Rule 49-O and does not want to vote for any candidate, is as under :
-
Carry out identification of the elector in the normal course using the EPIC/voter slip/alternative document produced by the elector.
-
After identification, put mark (diagonal line) in the box relating to the elector in the marked copy of the electoral roll, as in the case of other electors.
-
Apply indelible ink on the left forefinger of the elector.
-
Obtain signature/thumb impression of the elector in Form17-A (Register of voters).
-
In the remarks column of Form 17-A, make the following entries:
Elector decided not to record vote
-
Obtain signature/thumb impression of elector against the above entries entries in the remarks column.
-
It shall, however, not be necessary to make any change in the serial number of the elector or of any succeeding electors in column (1) of the Register of Voters.
-
If the Ballot button on the control unit has been pressed to make the ballot unit ready for recording a vote by an elector but he refuses to vote, either you/third Polling Officer, whoever is in-charge of the control unit, should direct the next voter straightaway to proceed to the voting compartment to record his vote. If the Ballot button on the control unit has been pressed to release voting on the ballot unit for the last elector but he refuses to vote, in that case, as a first step, you/third Polling Officer, whoever is in-charge of the control unit shall put the Power switch in the rear compartment of the control unit to OFF position and disconnect the ballot unit(s) from the control unit. In the second step, after disconnecting the ballot unit(s) from the control unit the Power switch should again be put ON . Now the Busy lamp will go off and the Close button will become functional to close the poll. If this whole process is not followed in such a case, the Close button will not be functional and without closing the control unit, it will not give the result, because the Result button will also become functional only after the Close button is pressed.
Under Section 79-D of the Representation of the People s Act, 1951, the words electoral right means, the right of a person to stand or not to stand as, or withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election .
The voter may like to refrain from casting vote for several reasons including the reason that he or she does not consider any of the candidates in the field as deserving of his or her vote. The disapproval of such voter of a candidate could be expressed by either staying away from the polling altogether or by going to the polling station and informing the Presiding Officer under Rule 49-O of the Rules of his intention not to vote. In such an event, the Presiding Officer would make an entry in the remarks column of Form 17A appended to the Conduct of Elections Rules, 1961. The voter will have to affix his signature under such entry. In such circumstances, to a certain extent, the petitioner is right that the Election Commission should consider the issue of providing a separate panel in the balloting unit of the EVM to provide for an option to the elector to reject the candidate if he so desire. The petitioner is also right to a certain extent that in the method of voting through EVM, if the voter has to inform the Presiding Officer of his desire not to vote, it would violate the secrecy of his vote, which ought to have been protected.
However, the question which falls for our consideration is, whether any writ or direction could be issued as prayed for by the petitioner ?
In our opinion, the changes as suggested by the petitioner have to be brought about by way of an amendment in the Representation of the People s Act, 1951. It is only for the Legislature to suitably amend the law and provide, by way of an amendment, the negative voting either in the balloting unit, in the EVM or in the ballot paper. This Court, in exercise of powers under Article 226 of the Constitution of India, should not legislate.
It has been brought to our notice that the Election Commission of India, vide its letter dated 4th December 2012 addressed to the Chief Electoral Officer, Gujarat, Gandhinagar, clarified its stance, and that too, with respect to the present writ petition, stating as under :-
...The main prayer in this petition is to introduce the buttion for No Vote in the EVMs. You are requested to find out whether the matter is coming up for hearing. If so, you may brief the following instructions to our counsel appearing in the matter :-
A. Regarding None of the Above provision in the EVM, a writ petition W.P.(C) No.161/2004 (PUCL & anr. Vs. UOI & ors.), is already pending before the Hon ble Supreme Court. The Division Bench, which heard the matter, directed that the matter be placed before a larger bench.
B. In addition to above, the Commission has moved the Govt. for amending relevant rules for providing None of the above option in EVMs. The Govt. is yet to amend the rules. A copy of the Commission s Counter Affidavit filed in the Hon ble Supreme Court is sent herewith for properly briefing the Counsel about the Commission s stand in the matter.
C. As for the procedure to be followed for exercising the right to not vote for any of the candidates, the provisions of Rule 49-O may be referred to. The polling personnel must have been briefed thoroughly in the training sessions on the procedure to be followed by them under Rule 49-O, so that they are fully equipped to guide the electors who may wish to exercise this right.
Further developments in the matter may please be intimated to the Commission urgently.
So far as the Writ Petition (Civil) No.161 of 2004 which is pending in the Supreme Court is concerned, it has been brought to our notice that vide order dated 23rd February 2009, the whole issue has been referred to a Larger Bench. We may only state that in the Writ Petition (Civil) No.161 of 2004 pending before the Supreme Court, the prayer is to declare Rules 41(2) and 49-O of the Conduct of Elections Rules, 1961 as ultra vires and unconstitutional to the extent they violate secrecy of vote, and further seeking direction upon the Election Commission to provide necessary provision in the ballot papers and the voting machines for protection of right not to vote and to keep exercise of such right secret.
The stance of the Union of India before the Supreme Court has been that the right of an elector to vote does not include the right to negative voting and, therefore, Rules 41(2) and 49-O of the Rules could not be dubbed as unconstitutional or ultra vires the provisions of Section 128 of the Representation of the People s Act. It is in the aforesaid background that while referring the matter to the Larger Bench, the Supreme Court (G.S.Singhvi, J. speaking for the Bench) observed as under :
20.
We have carefully read paragraphs 349 to 364 of the aforesaid judgment, which are found under the head Right to Vote - A Constitutional/Fundamental Right and find that even though the Constitution Bench did not overrule or discard the 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 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 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 Hon'ble the Chief Justice for appropriate order.
Thus, in our opinion, no relief as prayed for by the petitioner should be granted, more particularly, when the entire matter is in the realm of policy and coupled with the fact that the issue is at large before the Supreme Court.
For the foregoing reasons, we do not find any merit in this Application and the same is accordingly rejected with no order as to costs.
In view of the order passed in the main matter, the connected Civil Application No.13081 of 2012 also stands disposed of.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 15 of 15