Uncontested polls: Centre says right to vote and freedom of voting differ
POLITY – ELECTIONS
7 NOVEMBER 2025
- The Centre has argued in the Supreme Court that the ‘right to vote’ in an election is different from the ‘freedom of voting’, and while one is a mere statutory right, the second is a part of the fundamental right to freedom of speech and expression.
- The case was listed before a Bench headed by Justice Surya Kant for hearing on Thursday. However, the Bench did not assemble.
- The Centre was responding to a petition seeking to declare Section 53(2) of the Representation of the People Act, 1951, and Rule 11 read with Forms 21 and 21B of the Conduct of Elections Rules, 1961, which apply to ‘uncontested elections’, ultra vires the Constitution for violating freedom of speech and expression under Article 19(1)(a).
- Section 53(2) kicks in when the number of candidates equals the number of seats to be filled in an Assembly or Lok Sabha election. In such cases, the provision instructs a Returning Officer (RO) to declare all such candidates as duly elected by filling in Form 21 (in case of a general election) or Form 21B (in case of an election to fill a casual vacancy).
- Prevents use of NOTA
- The petitioners, Vidhi Centre for Legal Policy, represented by advocate Harsh Parashar, and the Association for Democratic Reforms, through advocates Prashant Bhushan and Neha Rathi, submitted that the RO’s declaration without conducting a poll prevented citizens from expressing their right to vote the ‘None of the Above’ or the NOTA option and voice their dissatisfaction about the contesting candidate.
- The Centre’s affidavit in court began with a fundamental lesson on the difference between ‘right to vote’ and the ‘freedom of voting’. It said the ‘right to vote’ was only a statutory right conferred by Section 62 of the Representation of the People Act of 1951, and subject to the limitations given in the statute.
- Freedom of voting, on the other hand, was a “species of the right to expression under Article 19(1)(a) of the Constitution”.
- Illustrating the gulf, the Centre has quoted from a 2003 Supreme Court judgment in Civil Liberties (PUCL) versus Union that “the initial right (right to vote) cannot be placed on the pedestal of a fundamental right, but at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate is tantamount to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter”.
- But, the Centre pointed out, the freedom of voting (the freedom to choose a candidate through positive vote or a negative vote through NOTA) was dependent on whether or not there was a poll taken.
- “Freedom of voting is an incidence of a poll,” the Union government submitted.
- The election would be put to vote only if the number of candidates were more than the number of seats to be filled, as provided under Section 53(1) of the 1951 Act. Again, there would be no poll if the number of candidates were fewer than the seats in an election, as mandated under Section 53(3) of the Act.
- ‘NOTA not a candidate’
- The Centre argued that NOTA did not fit within the definition of a ‘candidate’ under Section 79(b) of the RP Act, 1951. Besides, it said, elections cannot be left inconclusive by not declaring a winner. Indecisive elections render the electoral process an exercise in futility.
- In a separate affidavit,the EC agreed with the Centre that to treat NOTA as a “contesting candidate” in an election would require legislative amendments in the 1951 Act and the 1961 Rules.
- The top poll body said there were only nine instances of uncontested elections out of a total 20 General Elections from 1951 till 2024.