Gujarat High Court
Khemchand Rajaram Koshti vs State Of Gujarat & on 30 October, 2015
Author: Jayant Patel
Bench: Jayant Patel, N.V.Anjaria
C/CA/12015/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR ORDERS) NO. 12015 of 2015
In SPECIAL CIVIL APPLICATION NO. 13552 of 2015
With
CIVIL APPLICATION NO. 12047 of 2015
In
SPECIAL CIVIL APPLICATION NO. 13552 of 2015
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KHEMCHAND RAJARAM KOSHTI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance in Civil Application No.12015 of 2015:
MR PS CHAMPANERI, ADVOCATE for the Applicant(s) No. 1
MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL WITH MR PRAKASH JANI,
LD. ADDITIONAL ADVOCATE GENERAL WITH MS.MANISHA SHAH, LD.
GOVERNMENT PLEADER WITH MS S.K. VISHEN, LD. AGP for the
Respondent(s) No. 1
MR MIHIR THAKORE, LD. SR. ADVOCATE WITH MS AMRITA M THAKORE,
ADVOCATE for the Respondent(s) No. 2
Appearance in Civil Application No.12047 of 2015:
MS RATNA VORA, ADVOCATE for the Applicant(s) No. 1
MR PS CHAMPANERI, ADVOCATE for the Respondent(s) No. 1
MR KAMAL TRIVEDI, LD. ADVOCATE GENERAL WITH MR PRAKASH JANI,
LD. ADDITIONAL ADVOCATE GENERAL WITH MS.MANISHA SHAH, LD.
GOVERNMENT PLEADER WITH MS S.K. VISHEN, LD. AGP for the
Respondent(s) No. 2
MR MIHIR THAKORE, LD. SR. ADVOCATE WITH MS AMRITA M THAKORE,
ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
MR.JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
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C/CA/12015/2015 ORDER
Date : 30/10/2015
COMMON ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR.JAYANT PATEL)
1. We have heard Mr.Champaneri with Mr.Koshti for the applicant, Mr.Mihor Thakore, learned senior counsel with learned advocate Ms.Amrita Thakore for the State Election Commission and Mr.Kamal B. Trivedi, learned Advocate General for the State of Gujarat.
2. Civil Application No.12015 of 2015 has been preferred for suitable direction or clarification in the interim order granted by this Court against compulsory voting and other penal action at the ensuing election only and it is prayed that decision on part of the State Election Commission to deny the option of NOTA be set aside.
3. In Civil Application No.12047 of 2015 the prayer has been made to vacate interim order granted on 21st August, 2015 in the main Special Civil Application, but learned counsel Ms.Vora during the course of the hearing submitted that applicant is interested to ensure that right of NOTA is made available to the applicant and other voters.
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4. We may record that by Gujarat Act No.21 of 2014, Section 16-A under the Bombay Provincial Municipal Corporation Act (hereinafter referred to as Corporation Act), Section 15-A under the Gujarat Municipalities Act (hereinafter referred to as Municipalities Act) and Section 34-A under the Gujarat Panchayats Act (hereinafter referred to as Panchayats Act) came to be introduced on the statute book. When this Court considered the matter for the first time on 21st August, 2015, following order was passed.
"1. We have heard Mr.Champaneri, learned counsel for the petitioner.
2. Section 79(d) of the Representation of the People Act, 1951 (hereinafter referred to as R.P. Act) reads as under.
"(d) "electoral right" means the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election"
3. The aforesaid shows that for the election of Member of Parliament and Member of Legislative Assembly which is governed by the provisions of the Representation of the People Act, electoral right of the voters expressly provides for right to vote or to refrain from voting at the election. Such concept expressly provided in the statute negates the obligation in the nature of compulsion to be read upon the voters to vote.
4. As per the provisions of Part IX and IXA of the Constitution of India, Panchayats and Municipalities are given constitutional status and further, the elections of the Panchayats as per Article 243-A and Article 243-ZA are to be conducted by the State Election Commission. As per the provisions of the respective statutes, namely Gujarat Panchayats Act, Gujarat Municipalities Act and Bombay Provincial Municipalities Act, voters list of the voters are to be Page 3 of 16 HC-NIC Page 3 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER the same as that of electoral roll of the Legislative Assembly prepared and revised under the provisions of the Representation of the People Act for the time being in force, subject to the modification under the Act. When the elections of the Municipal Corporations, Municipalities and Panchayats are to be conducted by the State Election Commission, more particularly at par with the election of the Member of Legislative Assembly and Member of Parliament, it prima-facie appears that right to vote should have the same meaning as so expressly provided under Section 79(d) of the R.P. Act as referred hereinabove.
5. It is true that Panchayats and Municipalities is a subject of the State in List II of the Seventh Schedule of the Constitution of India, but any statute made by the State Legislative has to meet with the constitutional provisions and more particularly above- referred Part IX and IXA of the Constitution of India. Apart from above, duty which is otherwise not provided under the Representation of the People Act upon the voters for the election of Member of Parliament or election of Member of Legislative Assembly, prima-facie cannot be imposed in the elections of Municipal Corporations, Municipalities and Panchayats.
6. Right to vote is a statutory right conferred upon any voter. By virtue of statutory provisions it entitles voters to cast the vote. The moment such provision is accepted as that of entitlement to cast the vote, compulsion or obligation created to cast the vote would negate the entitlement on right of any voter. Once the name of any person is included in the voters list, entitlement on right to cast the vote would accrue but thereafter obligation or compulsion cannot be read or provided upon the voter to cast the vote. It is hardly required to be stated that when any statute provides for a right to any citizen, such citizen is bound to have freedom not to opt for such right or exercise such right. Such freedom with any voter is in-built in the provisions of Article 19(1)(g) of the Constitution of India. The Representation of People Act expressly recognises such right to vote including the right to refrain from voting. But even otherwise also, whenever any right is conferred upon any person to do a particular act, it would always include right to refrain therefrom.
7. It further appears that the obligation so created by way of compulsion is not a mere obligation, but it further provides for penal consequences, therefore, the compulsion so imposed is with more gravity. The moment there is more gravity of the compulsion so created, it would further negate the right to vote and right to refrain from voting.
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8. In view of above, it prima-facie appears that obligation so created by Gujarat Act No.21 of 2014 bringing about the amendment under Bombay Provincial Municipal Corporation Act, Gujarat Municipalities Act and Gujarat Panchayats Act may run counter to the basic principles of entitlement on right of the voters to vote. At this stage, we may profitably refer to the observations made by the Apex Court in case of People's Union for Civil Liberties Vs Union of India [2013(3) GLH 334 : (2013)10 SCC 1] and more particularly paragraph 44 to 57.
"45. Democracy and free elections are part of the basic structure of the Constitution. In Indira Nehru Gandhi v. Raj Narain, 1975 Supp 1 SCC 198 : (AIR 1975 SC 2299), Khanna, J., held that democracy postulates that there should be periodic elections where the people should be in a position to re-elect their old representatives or change the representatives or elect in their place new representatives. It was also held that democracy can function only when elections are free and fair and the people are free to vote for the candidates of their choice. In the said case, Article 19 was not in issue and the observations were in the context of basic structure of the Constitution. Thereafter, this Court reiterated that democracy is the basic structure of the Constitution in Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 : (AIR 1978 SC
851) and Kihoto Hollohon v. Zachillhu and Others, 1992 (Supp) 2 SCC 651 : (AIR 1993 SC 412).
46. In order to protect the right in terms of Section 79(d) and Rule 49-O, viz., "right not to vote", we are of the view that this Court is competent/well within its power to issue directions that secrecy of a voter who decides not to cast his vote has to be protected in the same manner as the Statute has protected the right of a voter who decides to cast his vote in favour of a candidate.
This Court is also justified in giving such directions in order to give effect to the right of expression under Article 19(1)(a) and to avoid any discrimination by directing the Election Commission to provide NOTA button in the EVMs.
47. With regard to the above, Mr. Malhotra, learned ASG, by drawing our attention to Section 62 of the RP Act, contended that this Section enables a person to cast a vote and it has no scope for negative voting. Section 62(1) of the RP Act reads as under:
"62. Right to vote.- (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the Page 5 of 16 HC-NIC Page 5 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER electoral roll of any constituency shall be entitled to vote in that constituency."
48. Mr. Malhotra, learned ASG has also pointed out that elections are conducted to fill a seat by electing a person by a positive voting in his favour and there is no concept of negative voting under the RP Act. According to him, the Act does not envisage that a voter has any right to cast a negative vote if he does not like any of the candidates. Referring to Section 2(d) of the RP Act, he asserted that election is only a means of choice or election between various candidates to fill a seat. Finally, he concluded that negative voting (NOTA) has no legal consequence and there shall be no motivation for the voters to travel to the polling booth and reject all the candidates, which would have the same effect of not going to the polling station at all.
49. However, correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, critisize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.
50. Eventually, voters' participation explains the strength of the democracy. Lesser voter participation is the rejection of commitment to democracy slowly but definitely whereas larger participation is better for the democracy. But, there is no yardstick to determine what the correct and right voter participation is. If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same. The voters' participation in the election is indeed the participation in the democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India.
Conclusion:
51. Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The 'Fair' denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the Page 6 of 16 HC-NIC Page 6 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER polls and thus participate in the governance of our country. For democracy to survive, it is essential that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting.
52. No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand.
53. Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people.
54. Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector's identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons.
55. Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are Page 7 of 16 HC-NIC Page 7 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.
56. The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate think about them.
57. As mentioned above, the voting machines in the Parliament have three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote."
9. If interim order is not passed, it may not only create complication of penal action at all ensuing elections, but validity of all such elections may be questionable and vulnerable on the ground of freedom and fairness to be made available to the voters/citizens as guaranteed under the Constitution of India.
10. In view of above, following order is passed.
Rule, returnable on 24th September, 2015. By way of interim order, there shall be interim relief in terms of paragraph 9(B).
Notice to the Advocate General.
Direct service is permitted. Additionally, the process shall also go through regular mode at the cost of the petitioner."
5. Thereafter none of the respondents including the State Election Commission had moved this Court for modification or vacation of interim relief, but it Page 8 of 16 HC-NIC Page 8 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER appears that in the meantime elections of all local bodies in the State were postponed by the State Election Commission on 03rd October, 2015. By Ordinance Nos.02 of 2015 and 03 of 2015, amendments were brought out in the Corporation Act, Municipalities Act and Panchayats Act. They were made subject matter of Special Civil Application No.16313 of 2015 and in the said petition, apart from the challenge to the decision of the State Election Commission for postponement of the election, constitutional validity of the amendment brought out by both the aforesaid Ordinances were challenged. In the said petition, this Court delivered judgment on 21st October, 2015 wherein recorded conclusion at Paragraph 72 and passed order accordingly, which reads as under.
"72. In view of the above observations and discussions, the following conclusions:-
(a) Section 15(1) of the Gujarat Panchayats Act inserted by Ordinance No.2 of 2015 is read down in a manner that the Election Commissioner must initiate the process of election at least 45 days prior to the expiry of the term of the respective Panchayats so as to enable the newly elected body to hold the first meeting and assume the power by replacing the outgoing elected body. If Section 15(1) is not interpreted and read accordingly, Section 15(1) would unconstitutional and void. If there is failure on the part of the State Election Commission to initiate the process for elections 45 days in advance, any citizen affected thereby would be at liberty to approach this Court under Article 226 of the Constitution for seeking appropriate direction against the State Election Commission.Page 9 of 16
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(b) Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act brought about by Ordinance No.3 of 2015 are held to be unconstitutional and void.
(c) The action of the State Election Commission for postponement of the election of all local bodies in the State is held to be illegal and is set aside. Respondent No.2 Election Commission is directed to initiate process of holding the election of the local bodies forthwith. Respondent No.1 State Government is directed to render all cooperation and assistance, including providing necessary police force and reserved force or any other force as may be requisitioned by the Election Commission for ensuring the election at the earliest in a free and fair atmosphere.
73. The petition is disposed of accordingly. No order as to costs.
FURTHER ORDER After the pronouncement of the order, Mr.Kamal Trivedi, the learned Additional Advocate General, on behalf of the State as well as Mr.Thakore, learned Sr. Counsel, on behalf of the Election Commission prayed that, as there is vacation in the Supreme Court, the operation of the order be stayed for some time so as to enable the State or the Election Commission, as the case may be, to approach before the higher forum. Mr.Gohil, learned Counsel for the petitioners has objected to the same by contending that even if the election program is published, there is not going to be voting immediately and further there is constitutional mandate to hold election and, therefore, the said prayer may not be granted.
Considering the facts and circumstances, as we have already observed that the constitution mandates the Election Commission to hold election and to create a situation for newly elected body to take over in place of the outgoing elected body. If the operation is stayed, the election process would be further delayed. Moreover, as observed by us, Section 7A of the GPMC Act, Section 8A of Municipalities Act and Section 257 of the Act are held to be unconstitutional, therefore, it would be more required for the Election Commission to undertake the process of election at the earliest, so as to uphold and maintain the spirit of the constitution in our democratic set up. Hence, we are not inclined to grant such prayer and the same is rejected. The original file of the State Election Commission, which was made available to us during the course of hearing is returned with the necessary papers to Mr.Thakore, learned Sr. Counsel, who is representing Page 10 of 16 HC-NIC Page 10 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER State Election Commission."
6. It appears that thereafter on 23rd October, 2015 a Press Note was given, copy whereof is produced with Civil Application No.12015 of 2015, whereby election programme is declared. However in the said Press Note at paragraph 2, it has been stated that as the interim relief has been granted against compulsory voting by this Court in Special Civil Application No.13552 of 2015 by order dated 21st August, 2015, compulsory voting including use of NOTA button is not to be implemented. It is on account of the said declaration/notification made in the Press Note by the State Election Commission, both the present Applications before this Court.
7. As such in view of the decision of the Apex Court in case of People's Union for Civil Liberties Vs Union of India [(2013) 10 SCC 1], one cannot say that right to vote in favour of none of the candidates by using NOTA button should not be made available to the voters.
8. However Mr.Thakore, learned senior counsel appearing for the Election Commission, submitted that all the respective Sections, namely Section 16-A, 15-A Page 11 of 16 HC-NIC Page 11 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER and 34-A are conjoint in asmuch as compulsory voting with freedom to the voter to vote in favour of none of the candidates contesting are incorporated. He submitted that as the interim order was passed by this Court in the main petition staying the operation and implementation of the aforesaid all the three Sections, Election Commission specifically mentioned in the Press Note about the said aspects that the right to use NOTA would not be available. He submitted that if this Court modifies the interim order, it would be extremely difficult on part of the Election Commission to make necessary arrangements for educating the Polling Officers and the public at large when the process is to begin immediately and the voting is to take place on 22nd November, 2015 in case of elections of Corporations and on 29th November, 2015 in case of elections of Panchayats and Municipalities.
He also submitted that in case of elections of Corporations and Panchayats Rules are framed by the State Government for giving effect to the aforesaid Sections inserted by the amendment, but for Municipalities, uptil now, Rules are not framed by the State Government and he also submitted that if the interim order is modified, it would require huge human Page 12 of 16 HC-NIC Page 12 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER resources to meet with the same. However Mr.Thakore conceded one aspect that EVM Machines procured by the Election Commission are with the NOTA button facility, but where number of candidates may increase, such may create complication or additional manual work would be required to be undertaken.
9. Considering the fact and circumstances and more particularly in view of the decision of the Apex Court in case of People's Union for Civil Liberties (supra), we find that right to vote in favour of none of the candidates contesting at the election, is one of the vital right of the voters and is also further so identified and strengthen by the Apex Court in the above-referred decision. Therefore, we do find that the interim order granted earlier deserves to be modified to that extent.
10. However on the aspect of apprehension voiced by the Election Commission for the difficulties, if any, on account of modification of the interim order, we find that it would be expected for the Election Commission to encourage more freedom on part of the voters so as to create an atmosphere of availability of all rights. In any case, as observed by us in the Page 13 of 16 HC-NIC Page 13 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER above-referred decision in Special Civil Application No.16313 of 2015, difficulties cannot be equated with impossibility. So long as it is not impossible, all efforts should be made on part of the State Election Commission to ensure the freedom to the voters for exercising their rights at the ensuing election. At the most, if required, Election Commission has to requisition necessary human support or the staff from the government machinery for such purpose. On behalf of the State Government the learned Advocate General has also agreed to provide more staff and other help, if required by the Election Commission. It is hardly required to be reiterated that the preservation and enjoyment of rights by voter at the election is the spirit of the soul of the election in any democratic country. All efforts should be culminated for ensuring the election and that too by making available to the voter the right to vote which would include as per the above-referred decision of the Apex Court in case of People's Union for Civil Liberties (supra) for casting vote in favour of none of the candidates contesting the election.
11. In view of above, the earlier ad-interim Page 14 of 16 HC-NIC Page 14 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER order granted is modified to the effect that the operation and implementation of Sections 16-A, 15-A and 34-A of the Corporation Act, Municipalities Act and Panchayats Act respectively shall remain stayed to the extent of compulsory voting and the later part of Section, so far as it relates, "however, he will be free to cast his vote in favour of none of the candidates contesting election as indicated in sub-
section (2)" shall not remain stayed.
12. It will be for the Election Commission to act accordingly at the ensuing election. The State Government is directed to provide all necessary assistance and support as may be required by the Election Commission for ensuring the right available to the voters to vote in favour of none of the candidates contesting at the election.
13. Both the Civil Applications are disposed of accordingly. Mr.Mihir Thakore shall convey the order to the Election Commission.
Mr.Thakore, learned senior counsel appearing for the Election Commission, after pronouncement of the order, prayed that operation of this order be Page 15 of 16 HC-NIC Page 15 of 16 Created On Wed Nov 04 00:42:18 IST 2015 C/CA/12015/2015 ORDER stayed for some time so as to enable his client to approach before the higher forum.
Considering the facts and circumstances, such prayer cannot be granted and hence declined.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) Anup Page 16 of 16 HC-NIC Page 16 of 16 Created On Wed Nov 04 00:42:18 IST 2015