Supreme Court strikes down Rules 41(2)(3) and 49-O for violating voting secrecy, directs Election Commission to introduce NOTA option

SC held that Rules 41(2)(3) and 49-O of Conduct of Election Rules, 1961 violated voting secrecy and were ultra vires Section 128 of RP Act and Article 19(1)(a). Court declared free and fair elections as basic constitutional structure, requiring protection of voter identity and secrecy for both voting and non-voting electors. Arbitrary distinction between voters who cast votes and those who don't violates Article 14. SC directed Election Commission to provide NOTA option in ballot papers/EVMs, enabling voters to express disapproval while maintaining secrecy. Court emphasized NOTA would encourage systemic change, forcing political parties to field candidates with integrity. Election Commission directed to implement NOTA and conduct awareness programmes with government assistance.

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Issues Involved:
1. Constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961.
2. Violation of the secrecy of voting.
3. The right to vote as a fundamental right.
4. Maintainability of the writ petition under Article 32 of the Constitution.

Detailed Analysis:

1. Constitutional Validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961:
The petitioners challenged the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961, arguing that these rules violate the secrecy of voting, which is fundamental to free and fair elections. The court examined these rules in detail, particularly focusing on how they handle the situation when a voter decides not to vote. According to Rule 49-O, if an elector decides not to vote, a remark to this effect is made in Form 17-A by the Presiding Officer, which compromises the secrecy of the voter's decision.

2. Violation of the Secrecy of Voting:
The court emphasized the importance of maintaining the secrecy of voting as enshrined in Section 128 of the Representation of the People Act, 1951, and Rules 39 and 49M of the Conduct of Election Rules. The court noted that secrecy is essential for free and fair elections, allowing voters to exercise their franchise without fear of reprisal. The court found that the existing provisions, particularly Rule 49-O, which requires a remark to be made when a voter decides not to vote, violate this principle of secrecy.

3. The Right to Vote as a Fundamental Right:
The court discussed whether the right to vote is a fundamental right or merely a statutory right. Referring to previous judgments, the court reiterated that the right to vote is a statutory right; however, the decision taken by a voter, whether to vote or not, is a form of expression under Article 19(1)(a) of the Constitution. The court held that the right to vote and the right not to vote are both integral to the freedom of expression and must be protected equally.

4. Maintainability of the Writ Petition under Article 32 of the Constitution:
The Union of India argued that the writ petition under Article 32 is not maintainable as the right to vote is not a fundamental right. However, the court held that the right to vote, though statutory, is intertwined with the fundamental right of freedom of expression under Article 19(1)(a). Therefore, any violation of this right gives the aggrieved person the right to approach the court under Article 32. The court also noted that directing the petitioners to approach multiple High Courts would be impractical given the nature of the relief sought, which affects all eligible voters.

Conclusion:
The court declared Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961, as ultra vires to the extent they violate the secrecy of voting. The court directed the Election Commission to provide a "None of the Above" (NOTA) option in Electronic Voting Machines (EVMs) to allow voters to exercise their right not to vote while maintaining their right of secrecy. The court emphasized that this measure would enhance the democratic process by allowing voters to express their disapproval of all candidates, thereby promoting better candidate selection by political parties. The court also directed the Election Commission to undertake awareness programs to educate the public about the NOTA option.

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