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SC says secrecy of vote a must in any election


The Supreme Court held that in any election, be it to Parliament or State legislature, the maintenance of secrecy of voting is “a must”.


GS-II: Polity and Governance (Constitutional Provisions, Representation of People’s Act)

Dimensions of the Article:

  1. Recent Supreme Court Judgement on Secret Ballot
  2. About Right to Vote in India and the Privilege of Secrecy

Recent Supreme Court Judgement on Secret Ballot

  • The Supreme Court held the secrecy is a part of the fundamental right of freedom of expression and the confidentiality of choice strengthens democracy.
  • Democracy and free elections are a part of the Basic Structure of the Constitution and an important postulate of constitutional democracy.
  • The bench noted that since an 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.
  • The SC also said that Booth capturing and/or bogus voting should be dealt with iron hands, because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election.
  • Even a remote or distinct possibility that a voter can be forced to disclose for whom she has voted would act as a positive constraint and a check on the freedom to exercise of franchise.
  • The secret ballot helps protect voters from fear of intimidation or coercion.

About Right to Vote in India and the Privilege of Secrecy

  • In India, the right to vote is provided by the Constitution and the Representation of People’s Act, 1951, subject to certain disqualifications.
  • Article 326 of the Constitution guarantees the right to vote to every citizen above the age of 18.
  • Further, Section 62 of the Representation of Peoples Act (RoPA), 1951 states that every person who is in the electoral roll of that constituency will be entitled to vote.
  • Section 94 of the Representation of People Act upholds the privilege of the voter to maintain confidentiality about their choice of vote.

Waiving off secrecy

  • However, a voter can also voluntarily waive the privilege of non-disclosure and the privilege of confidentiality ends when the voter decides to waive the privilege and instead volunteers to disclose as to whom they had voted.
  • No one can prevent a voter from disclosing nor can a complaint be entertained from anybody as to why they disclosed for whom they voted.

NOT all elections in India employ Secret Ballot system

  • Votes are given by open ballot for elections in the Rajya Sabha (Council of States). The representatives of each State and of the two Union territories in the Rajya Sabha are elected by the elected members of the Legislative Assembly of the State and by the members of the electoral college for that territory, as the case may be, in accordance with the system of proportional representation by means of the single transferable vote which are given by Open Ballot. Source.
  • Rule 39AA of the Conduct of Election Rules of 1961 provides for open ballot system of voting for elections in the Rajya Sabha.
  • A voter may show his/her marked ballot paper ONLY to the authorised representative of his/her political party (Party Whip) (and not to be shown to anyone else except the whip, or else that vote will be declared invalid) before dropping it into the ballot box.
  • In case of independent MLAs, they do not have to show their votes to “anyone at all”.
  • The party high command can issue a whip for a Rajya Sabha candidate, but anti-defection law provisions do not apply, and a defiant MLA is not disqualified from membership of the House.
  • The Supreme Court has in the past held that open ballot votes in Rajya Sabha elections against the whip will not lead to disqualification as the Tenth Schedule, pertaining to anti-defection provisions, has a different purpose.

-Source: The Hindu

December 2023