The Supreme Court on Friday said that if a person is not allowed to cast negative votes, it would "defeat" the rights of the citizens as ensured by Article 21 of the Constitution.
The court's observation came while passing an order to the Election Commission, asking it to include
the "none of the above (NOTA)" option in voting machines and ballot papers to ensure a vibrant democracy.
The court's order has been dubbed as historic by activists fighting for cleansing politics while drawing a mixed response from political parties.
A three-judge bench headed by Chief Justice P Sathasivam, which held that voters have a right to reject all candidates contesting polls in a constituency by pressing a button for negative vote, observed that essence of the electoral system should be to ensure voter's freedom to exercise free choice.
"Article 19 guarantees all individuals the right to speak, criticise, 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 ie, the right to liberty," the bench said.
The bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, observed that 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," it said.
The apex court also rejected the Centre's objection that the petition seeking right to negative vote was not maintainable.
The Centre had sought dismissal of the PIL contending that since the right to vote is not a fundamental right and merely a statutory right, the petition under Article 32 was not maintainable.
The bench, in its judgement, observed that the petition relates to the right of a voter and it was applicable to all voters of the country.
"Apart from the above, we would not be justified in asking the petitioners to approach the high court to vindicate their grievance by way of a writ petition under Article 226 of the Constitution of India at this juncture," it said.
"Considering the reliefs prayed for which relate to the right of a voter and applicable to all eligible voters, it may not be appropriate to direct the petitioners to go to each and every high court and seek appropriate relief," the bench added.
Dealing with the issue if the PIL was maintainable or not, the bench said since the petition was pending before the apex court for the past nine years, it would not be appropriate to reject it on the grounds of maintainability as contended by the Centre.
"Accordingly, apart from our conclusion on legal issue, in view of the fact that the writ petition is pending before this court for the last more than nine years, it may not be proper to reject the same on the ground, as pleaded by ASG (additional solicitor general).
"For the reasons mentioned above, we reject the said contention and hold that this court is competent to hear the issues raised in this writ petition filed under Article 32 of the Constitution," the bench said.
It also observed that "casting of the vote is a facet of the right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution".
"Therefore, any violation of the said rights gives the aggrieved person the right to approach this court under Article 32 of the Constitution of India," it said.
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