P. Venkatarama Reddi, J. agreed with M.B. Shah, J. that v. For this, the voter should be in a position to effectively

Judgment

2 S.C.R. 921 t I PEOPLE'S UNION FOR CIVIL LIBERTIES AND ANOTHER A v UNION OF INDIA AND ANOTHER Writ Petition (Civil) No.161 of 2004 ' ' FEBRUARY 23, 2009 B (8.N. AGRAWAL AND G.S. SINGHVI, JJ.) REPRESENTATION OF THE PEOPLE ACT, 1951/CONDUCT OF ELECTION RULES, 1951: • Sections 33A, 33B!Rules 41(2) and 49-0 - Right to c negative voting and to keep it secret - Appropriate directions to Election Commission to make necessary provision in the ballot papers and in Electronic Voting Machines - Prayed for in Writ Petition - Held: C. B. Judgment in Ku/dip Nayar's case has not overruled or discarded the ratio in Association for Democratic Reforms and PUCL, both by 3 Judges Bench, tends to create a doubt whether the right of voter to exercise his choice for the candidate is a necessary concomitant of the voter's freedom of expression' guaranteed under Article 19(1)(a) of the Constitution - Thus the issue needs a clear exposition of law by a lqrger Bench - Also the width and amplitude of the power of the Election Commission under Article 324 of the Constitution needs further consideration by a larger Bench in the light of Supreme Court Judgments recognizing elector's right to be informed of the assets and antecedents of the candidates - Reference to larger Bench. In the Writ Petition, the petitioners have prayed for striking down Rules 41 (2) and 49-0 of the Conduct of Election Rules, 1961 and for a direction to the Election Commission to make appropriate provision in the ballot papers and Electronic Voting Machines (EVMs) so as to ' enable the voters to exercise their right of negative voting . and also ensure that exercise of such right is kept secret. Referring the matter to a larger Bench, .the Court 921 D E F G H .} ) I " F ,_ ' 922 SUPREME COURT REPORTS [2009] 2 S.C.R. A HELD: 1. Democracy is a part of the basic structure of our Constitution and rule of law and free and fare election are basic features of democracy. Democracy postulates that there should be periodical elections so that people may be in a position either to re-elect the same B representatives or choose new representatives. Democracy also contemplates that elections should be free and fair and the voters should be in a position to vote for the candidates of their choice. The pre-requisite of this is that the elections are not rigged and manipulated and the candidates or their agents are not able to resort to unfair means and malpractices. [Para 1] (925-A-B] C

#2. In view of the judgments in Association for Democratic Reforms, and PUCL, a new dimension was given to the right of sovereign· i.e. the people to make o choice of their representatives after knowing the assets and antecedents of the persons seeking_ election to the legislatures. These judgments also gave an expansive meaning to the term 'expression' used in Article 19(1)(a) by declaring that in the democratic set up of our country the elector's right to have complete information about the candidates and then express his choice for a particular person, are necessary concomitant of the freedom of expression guaranteed under Article 19(1 )(a). [Para 8] (934-H; 35-A-B] E F