Certain doubts have
arisen in the minds of some of the electors at the current Presidential
Election, 2017 to the effect whether a member of a political party voting in
defiance of the political party’s decision would attract the disqualification
on the ground of defection under the Tenth Schedule to the Constitution of
India or the political party taking such decision would be liable to any
penalty for asking their members to vote in a particular manner or not to vote
at all. During the past also, similar points were raised during the currency of
the Presidential Elections. The Commission had issued clarification through
Press Notes in the past as well. The contents of the Press Notes issued in this
regard are reproduced below for general information.
“The Commission would
like to clarify in this context that the voting at election to the Office of President
of India is not compulsory, like the voting at elections to the House of the
People and State Legislatures where also there is no compulsion to vote. The
‘electoral right’ of a voter is defined in section 171A(b) of the Indian Penal
code to ‘mean the right of a person to stand, or not to stand as, or to
withdraw from being, a candidate or to vote or refrain from voting at
election’. Thus, every elector at the Presidential election has the freedom
of making a choice to vote for any of the candidates or not to vote at the
election, as per his free will and choice. This will equally apply to the
political parties and they are free to canvas or seek votes of electors for any
candidate or requesting or appealing to them to refrain from voting. However,
the political parties cannot issue any direction or whip to their members to
vote in a particular manner or not to vote at the election leaving them with no
choice, as that would tantamount to the offence of undue influence within the
meaning of section 171C of the IPC.
The Commission may also
like to further clarify that voting at election to the office of President is different
from voting by a member of Parliament or State Legislature inside the House and
that, as held by the Hon’ble Supreme Court in kuldipNayar v Union of India
(AIR 2006 SC 3127)whether the provisions of Tenth Schedule to the
Constitution would be attracted in the case of the election to the Rajya Sabha
if a member of a State Legislative Assembly votes for a candidate in defiance
the party’s directions, where the votes are now given by the system of open
voting. The Hon’ble Supreme Court held that an elector would not attract the penal
provisions of the Tenth Schedule for having so voted at the Rajya Sabha
election. Attention may be invited to the following observations of the Hon’ble
Supreme Court in that case: -
“(183) IT is the
contention of the petitioners that the fact that election to fill the seats in
the Council of States by the legislative assembly of the State involves
‘voting’, the principles of Tenth Schedule itself shows that open ballot system
tends to frustrate the entire election process, as also its sanctity, besides
the provisions of the Constitution and the RP Act. They submit that the open
ballot system, coupled with the looming threat of disqualification under the
Tenth Schedule reduces the election to a political party issuing a whip and the
candidate being elected by a show of strength......
......in
view of the law laid down in KihotoHollohan v. Zachillhu (supra), it is not
correct to contend that the open ballot system tends to expose the members of
the Legislative Assembly to disqualification under the Tenth Schedule since
that part of the Constitution is meant for different purposes.”
Earlier
also, the Hon’ble Supreme Court has observed in Pashupati Nath Sukul v Nem
Chandra Jain (Air 1984 SC 399) that elections to the Rajya Sabha by members of
the State Legislative Assemblies are a non-legislative activity and not a
proceeding within the State Legislature. The election to the Office of the
president is also held by an electoral college which consists of elected
members of both House of Parliament and elected members of the State
Legislative Assemblies (Article 54 of the Constitution). The electors of this
electoral college vote at the Presidential election as member or the said
electoral college and the voting at such election is outside the House concerned
and not a part of the proceeding of the House.
Therefore,
the above quoted observations of the Hon’ble Supreme Court in the case of
Kuldip Nayar (Supra) and Pashupati Nath Sukul (Supra), will apply with equal
force at the Presidential election as well. Accordingly, in the Commission’s
opinion, the voting or not voting as per his/her own free will at the
Presidential election will not come within the ambit of disqualification under
the Tenth Schedule to the Constitution of India and the electors are at liberty
to vote or not to vote at the Presidential election as per their own free will
and choice.”
Election
Commission of India
New Delhi: 06th
July, 2017
RM/ RS