Note on PUCL v UOI - Ragul Murali

[Ragul Murali]

In this thought paper, I shall be discussing what struck my mind as I read the PUCL v UOI judgement.

It has been held in the case that the secrecy of a person who goes to the polling booth and decides not to vote needs to be maintained just as the identity of an elector who casts a positive vote is kept secret and in no way can he be compelled legally to disclose how the elector voted. And hence, the option of None of the Above (NOTA) was directed to be introduced by the Supreme Court. 

Through the court’s reasoning it becomes apparent that they believe that elections are a manifest of the will of the people and that alone drives a democracy. I find it slightly problematic that the Election Commission’s clarification regarding NOTA is such that NOTA has no theoretical consequence purely in terms of who gets elected. Since the Supreme Court seems to be in acceptance of the view that, “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.” Since the whole driving force behind this judgement, apart from protecting secrecy appears to be to also promote fielding of competent candidates, it appears that when the will of the electoral populous is to predominantly vote NOTA, they are dissatisfied with the current crop of candidates. Hence, though a candidate as per the rules may have won, he would not have won on the majority of votes which ultimately is a subversion of the democratic process of free and fair election. This being so because the number of negative votes outweigh the positive votes secured by the candidate. Since in democracy, the concept of representation is built on the principle of will of majority, it seems futile to name a candidate to be the representative of the people when the number of people rejecting him trump the number of people electing him.

Though the economic price to pay to ensure most competent candidates become representatives through re-election is quite heavy, it has to be weighed against the benefit, which is ensuring that elections remain democratic i.e. the will of the people takes manifestation by the person with majority votes, taking into account both positive and negative votes, goes on to become the elected representative. And since democracy is the founding principle of this nation, the economic price to pay stands outweighed.

As an aside, it also seems to me to be unjustified to classify right to vote as just statutory and not fundamental. I think the differentiation between right to vote and freedom of voting are the same as tight to speak and freedom of speaking. It seems unjustified that then that right to vote which requires the exercise of the will does not fall under epression a/u Art. 19(1)(a).

[udbhav...@gmail.com]

Thought Paper II – Udbhav Tiwari
 PUCL v Union of India (2013) – Negative Voting

 

The case of PUCL v Union of India (2013) has been (in my personal opinion) of the most progressive, far reaching and well-reasoned judgement by the Court in recent times. The recognition of the ‘act’ of voting as being an essential part of democracy and hence by extension an integral part of the Constitution is one the court has used before but rarely to such an effective degree.

The arguments put forth by the government regarding voting and elections being a purely statutory right and hence outside the purview of Article 32 illustrate the lack of jurisprudential development in the Indian context of elections, inspite of India being the largest democracy in the world for close to fifty years.

The particular usage of free speech doctrines, specifically the importance of secrecy of opinions in elections, is both innovative and effective use of tangential first principles for one of the bedrocks of democracy. In fact, the lack of elucidation in our Constitution (apart from using the word democracy in the preamble)  regarding the modalities of elections themselves came as a bit of a surprise once PUCL arguments showed me just how much had been left to the legislature/executive to implement without any guiding principles.

These ‘guiding principles’  I think are by far the most important output of this case as the discourse by the Court of essential (seemingly obvious) facets such a  free and fair elections, democratic discourse being a valid form of criticism, substantial barriers to voting, etc. are all gone into in a fair amount of detail. The impact of this judgement (where lose to 4% of the votes polled in the last election were negative) will be seen in both the short and long term, both serving the people of India by incentivising a more responsible government.