28, Oct 2023 | Tanya Arora
On October 13, the Manipur High Court delivered a judgement re-iterating the recognition of right to information and the importance of voters’ speech or expression under the fundamental rights provided under the Constitution of India. The judgment held that the casting of votes is a part of the voter’s right to freedom of speech and expression under Article 19 (1) (a) of the Indian Constitution.
“Article 19(1)(a) of the Constitution of India provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote,” the Court said. (Para 35)
This particular judgment was delivered by Justice MV Muralidaran who was recently transferred to the Calcutta High Court. It further provides that while exercising the right to cast a vote, information about the candidate to be selected is must. The judgment also emphasised that the voter’s right to know the antecedents, including criminal past of the candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy.
The judgment of the court stated that “Voter’s right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The voter may think over before making his choice of electing law breakers as law makers” (Para 35)
This particular judgment was delivered by Justice MV Muralidaran, who was Acting Chief Justice at the time of decision and has recently been transferred to the Calcutta High Court. The said judgment has paved a path for a more transparent election process and can potentially have a serious impact in the arena of voting and election rights as it clarifies the legal character that the right to vote holds in India.
Facts of the present case:
The aforementioned observations were made by the Manipur High Court while hearing a plea filed by Bharatiya Janata Party (BJP) Member of Legislative Assembly (MLA) Thounaojam Shyamkumar. His plea urged for the dismissal of petitions filed that sought for his dismissal of his election from Andro Assembly Constituency during the 2022 Legislative Assembly polls. Shyamkumar’s election had been challenged by Manipur election runner-up candidate Lourembam Sanjoy Singh and his brother Lourembam Sanjit Singh on the ground of non-disclosure of information regarding the pendency of a criminal case against Shyamkumar. The petition had also raised allegations that Shyamkumar had committed the offence of corrupt practices owing to improper declaration of information regarding Shyamkumar’s wife’s non-agricultural land.
Observations of the court:
After hearing the parties of the plea, the Court observed that whether the criminal cases said to have been registered against the Shyamkumar were deliberately omitted from the FORM-26 at time of filing of nomination papers has to be decided during the trial by the Court. A similar observation was made by the Court with regard to mentioning of non-agricultural land and agricultural land in the relevant columns.
“Whether the allegation of the election petitioner and the second respondent (the Singh brothers) are correct or not has to be proved by the election petitioner and the second respondent respectively and further, as to whether, incorrect particulars have been mentioned in the affidavit in Form-26 by the first respondent/returned candidate and whether the alleged false affidavit would amount to violation of the provisions of Section 33 of the RP Act so as to render 24 the election of the first respondent void are to be considered by the Court in the course of trial,” Justice Muralidharan opined in Para 44 of the judgment.
In regards to this, the High Court rejected the plea filed by Shyamkumar and concluded that it cannot be said that election petitions against him do not contain a concise statement of material facts. Rather, the court held that the petitions disclose a cause of action against him.
It further observed that an election vitiated by reason of corrupt practices, illegalities and irregularities, as mentioned in Sections 100 and 123 of the Representation of People Act, cannot obviously be recognized and respected as the decision of the majority of the electorate. Observing this, the Court noted that it is the obligation of the Courts to examine such allegations, the bench said they cannot be “unduly hyper-technical” in their approach and oblivious of the ground realities.
The complete judgment can be read here:
The right to vote in India:
Article 326 of the Indian Constitution provides that every citizen of India above the age of 18 (Sixty- first Amendment) were granted the right to vote. It also provides that the Constitution provides that the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage. It states that “every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.”
The aforementioned judgment of the Manipur High Court is significant today as on several occasions, the Supreme Court of India has taken a contradictory stand on whether the right to vote is merely a statutory right or holds more value. For context, statutory rights are those provided for by any laws passed by Parliament. These rights can be enforced in courts provided for in the law itself, and can also be curtailed or completely removed by bringing in amendments to the law. On the other hand, fundamental rights are those rights provided under Part III of the Constitution, which are guaranteed to every citizen of the country, and cannot be taken away by the state, except for the reasonable restrictions imposed on these by the Constitution itself. In case of any infringement of the fundamental rights, the victim can approach the Supreme Court (under Article 32) or the High Court (under Article 226).
Through its recent judgments, the Supreme Court has categorised the same to be a constitutional right. These judgments are provided below.
A move from statutory right to constitutional right:
- Right to vote based on informed choice
In July 2023, a bench comprising Justices S Ravindra Bhat (now retired) and Aravind Kumar had deemed it to be paradoxical that the right to vote has not been held to be a fundamental right, though democracy forms a part of the basic features of Constitution. In the case of Bhim Rao Baswanth Rao Patil V. K. Madan Mohan Rao & Ors., the Supreme Court stated that “Democracy has been held to be a part of one of the essential features of the Constitution. Yet, somewhat paradoxically, the right to vote has not been recognized as a Fundamental Right yet; it was termed as a ‘mere’ statutory right”. Notably, even as the Supreme Court had made the said comment, it shied away from declaring the right to vote as a fundamental right.
In the said case, the Court has also held that a voter has the full right to be informed about the background of a candidate. In its judgment, the bench had observed that “The elector or voter’s right to know about the full background of a candidate- evolved through court decisions- is an added dimension to the rich tapestry of our constitutional jurisprudence.”
The court had also emphasized the right of a voter to make an informed choice, a right that had been a result of our long fight for India. The Supreme Court stated “the right to vote, based on an informed choice, is a crucial component of the essence of democracy. This right is precious and was the result of a long and arduous fight for freedom, for Swaraj, where the citizen has an inalienable right to exercise her or his right to franchise. This finds articulation in Article 326 of the Constitution.”
Facts of the case: The division bench of the Supreme Court was considering a challenge to the order of the Telangana High Court that dismissed an application seeking rejection of the election petition filed against Bhim Rao Baswanth Rao Patil, the appellant. The election petition had been filed for non-disclosure of certain pending cases against him. The appellant had contended that the election petition did not disclose any cause of action and was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
- Right to vote is a constitutional right
In March of 2023, a Constitutional bench of the Supreme Court comprising Justices KM Joseph (now retired), Ajay Rastogi (now retired), Aniruddha Bose, Hrishikesh Roy and CT Ravikumar had sparked a debate on the legal status that is granted to a citizen’s right to vote. In the case of Anoop Baranwal v. Union of India, the four judges led by former Justice KM Joseph had declared the majority judgment which had held the right to vote to be a constitutional right.
Former Justice KM Joseph, who had written the majority judgment, had held that while free and fair elections formulate a basic feature of the Constitution and is fundamental to democracy, the right to elect representatives is one of the most important statutory rights.
The judgement had stated that “What is important is that the Court noted in Anukul (supra) that holding of free and fair elections constitute a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy. Even if it is treated as a statutory right…the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis.”
Notably, in the majority judgment, Former Justice Joseph had refrained from making a final judicial declaration in this regard chose not to “finally pronounce” on this aspect, while taking into account the view taken by an earlier Constitution Bench in Kuldip Nayar and Others v. Union of India and Others. In Kuldip Nayar, the top court had rejected the view that “right to vote is a constitutional right beside that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution.”
In his separate but concurring judgment, former Justice Ajay Rastogi had differed from the view of the majority and held the right to vote to be a fundamental right. The former justice had said that by exercising the right to vote, the citizens of India get to choose their own destiny. The former justice had further observed that the right to vote is not merely a constitutional right, but a component of fundamental rights under Part III of the Constitution. Holding the same right to be indispensable, the then Supreme Court judge had gone on to state that the right to vote does not only remain limited to Article 326, but also flowed through Article 15, 17, 19 and reflected in Article 21 of the Constitution.
“In history, the right to vote was denied to women and those were socially oppressed. Our Constitution took a visionary step by extending franchise to everyone. In that way, the right to vote enshrines the protection guaranteed under Article 15 and 17…The right to take part in the conduct of public affairs as a voter is the core of the democratic form of government, which is a basic feature of the Constitution. The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen’s life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21,” former Justice Ajay Rastogi had said.
Facts of the case: The aforementioned judgment of the Supreme Court came in the PIL (Public Interest Litigation) that was filed by Anoop Baranwal in the year 2005 on the ground that the current system for appointing members of the Election Commission of India (ECI) was unconstitutional. As per the PIL, the executive enjoyed the power to make appointments, which the PIL contended had degraded the ECI’s independence over time. The PIL pleaded for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments.
- Right to vote a constitutional right and not a statutory right
In February 2023, the question on the legal position that right to vote holds under the Indian Constitution was also referred to by a Supreme Court bench led by CJI DY Chandrachud. The bench, also comprising Justices PS Narasimha and JB Pardiwala, was hearing a PIL challenging the constitutionality of Section 33(7) of the Representation of Peoples Act 1951 that allowed a candidate to contest from two seats in elections. During the hearing, the CJI expressed his reservations regarding treating the right to vote as a statutory right.
CJI Chandrachud had said “Of course, there are some judgments that say that the Right to Vote is only a statutory right and not a constitutional right. But no, it is a constitutional right because it’s a part of Article 19(1)(a) – the right of expression, the right of people to elect, and for people to vote.”
These remarks of the CJI stand right in the middle of ratio decidendi and obiter dicta. However, CJI Chandrachud did not elaborate much on this issue as it did not form an essential question in this matter.
A necessary shift?
Vote is an instrument by which a person elects their representative to represent them before the sovereign and the elected representative reflects and represents the people by whom that person is elected. It is crucial to highlight that through the current judgment, and the July judgment of the Supreme Court, the courts have also re-iterated the right to information that every voter is guaranteed with. A proper use of voting rights by citizens of a country can act as a shaping instrument of the future of any country, and it is the right of citizens to be supplied with information that aids their decision-making without any manipulation. In the year 2020, in Public Interest Foundation vs Union of India, political parties had been directed by the Supreme Court to publish criminal antecedents of contesting candidates along with reasons for fielding each one of these candidates, notwithstanding their ‘winnability’. Based upon the judgment of the Supreme Court, the Election Commission of India (ECI) had also issued a directive to implement the apex court’s orders concerning criminal antecedents of candidates.
The right to vote has been on a crucial judicial journey. A positive shift can be seen in this regard, with the Manipur High Court holding the said right to be an extension of the fundamental right guaranteed by India’s Constitution rather than a statutory expression provided under the Representation of Peoples Act, 1951. An unequivocal judgment of the Supreme Court declaring the right to vote as a fundamental right is the need of the hour as it is through this right that the citizens of India express their political will, exercise their choice and uphold the spirit of our democratic country.
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