Right to Vote vs Freedom of Voting
Context
The Union Government has argued before the Supreme Court of India that:
The right to vote is a statutory right, while the freedom of voting (choice of whom to vote for or to abstain) is a part of the fundamental right to freedom of speech and expression under Article 19(1)(a).
The Centre was responding to a petition challenging provisions related to uncontested elections, which prevent electors from exercising the NOTA (None of the Above) option.
Issue in the Case
Petitioners:
Vidhi Centre for Legal Policy and Association for Democratic Reforms (ADR)
Their Argument:
Under Section 53(2) of the Representation of the People Act, 1951 (RPA) and Rule 11 of the Conduct of Elections Rules, 1961, if the number of candidates equals the number of seats, the Returning Officer (RO) can declare them elected without polling.
This deprives voters of their right to express dissent through the NOTA option, violating Article 19(1)(a) (freedom of speech and expression).
Related Provisions
Provision | Description |
Section 53(2), RPA 1951 | If the number of validly nominated candidates equals the number of available seats, those candidates are declared elected without a poll. |
Rule 11, Conduct of Elections Rules, 1961 | Provides the procedure for uncontested elections. |
Forms 21 & 21B | Prescribed forms used by Returning Officers to declare candidates elected uncontested. |
Section 79(b), RPA 1951 | Defines a candidate as one who has been or claims to have been duly nominated. (NOTA is therefore not a candidate.) |
Government’s Argument
Right to Vote is a Statutory Right
Conferred by Section 62 of RPA, 1951.
Exists only because of legislation; not guaranteed by the Constitution.
Freedom of Voting is a Fundamental Right
Part of Article 19(1)(a) (freedom of speech & expression).
Arises only when polling takes place — that is, during the act of voting.
Based on the Supreme Court’s 2003 judgment in PUCL vs Union of India.
“Freedom of Voting is an incidence of a poll.”
If there is no poll, there is no scope for exercising that freedom.
Hence, NOTA cannot apply when elections are uncontested.
NOTA not a Candidate
Under Section 79(b), NOTA doesn’t fit the definition of a “candidate.”
Elections cannot be kept “indecisive” simply to allow expression of dissent.
Election Commission’s Stand
The Election Commission of India (ECI) agreed with the Centre.
Treating NOTA as a contesting candidate would require legislative amendment to the RPA and Conduct of Elections Rules.
Out of 20 General Elections (1951–2024), there have been only nine uncontested elections, showing that this is a rare occurrence.
Judicial Precedent: PUCL v. Union of India (2003)
The Supreme Court, in People’s Union for Civil Liberties (PUCL) vs Union of India, held:
“The right to vote is a statutory right, but the decision to vote or not vote for a candidate is a form of expression under Article 19(1)(a).”
This led to the introduction of NOTA (2013) in EVMs, allowing voters to reject all candidates.
Constitutional Dimensions
Specification | Nature of Right | Source |
Right to Vote | Statutory | Section 62, RPA 1951 |
Freedom of Voting (Choice/Expression) | Fundamental | Article 19(1)(a) |
NOTA (None of the Above) | Expression of dissent | Recognized via SC judgment (2013) |
Free and Fair Elections | Basic feature of the Constitution | Indira Gandhi v. Raj Narain (1975), PUCL (2003) |
Criticism and Reform Ideas
Critics argue that automatic election without polling undermines popular sovereignty.
Reforms suggested:
Mandatory minimum voter participation even in uncontested seats.
Consideration of “Re-poll provision” if NOTA gets a majority.
Decriminalization of politics and intra-party democracy to ensure more genuine competition.
Prelims Practice MCQ
Q1. With reference to elections in India, consider the following statements:
The right to vote is a fundamental right under Article 19(1)(a) of the Constitution.
The freedom of voting, i.e., the choice to vote for or against a candidate, is a facet of the freedom of expression.
NOTA has been included in EVMs as a result of a Supreme Court judgment.
Which of the statements given above is/are correct?
A. 1 only
B. 2 and 3 only
C. 1 and 2 only
D. 1, 2 and 3
✅ Answer: B. 2 and 3 only
Explanation:
The right to vote is statutory, not fundamental.
The freedom to vote (or not vote) is part of freedom of expression (PUCL 2003).
NOTA was introduced following Supreme Court direction in 2013 (PUCL v. Union of India).
Q2. Consider the following pairs:
Provision / Rule | Subject Matter |
1. Section 53(2), RPA 1951 | Uncontested elections |
2. Rule 11, Conduct of Elections Rules 1961 | Procedure for declaring unopposed candidates |
3. Section 62, RPA 1951 | Right to vote |
Which of the pairs given above is/are correctly matched?
A. 1 and 2 only
B. 1 and 3 only
C. 1, 2 and 3
D. 3 only
✅ Answer: C. 1, 2 and 3
Explanation:
All three provisions correctly describe their respective subject matter under election law.
Q. The Supreme Court’s judgment in PUCL vs Union of India (2003) is significant because it:
A. Introduced compulsory voting in India.
B. Recognized the right to reject all candidates (NOTA) as a form of free expression.
C. Declared voting as a fundamental right.
D. Invalidated the use of EVMs in elections.
✅ Answer: B. Recognized the right to reject all candidates (NOTA) as a form of free expression.