The right to vote is one of the most important tools in keeping the spirit of democracy alive. The right to vote is a key tenet of our democratic system. Ordinary men and women have struggled and died for securing voting rights and to ensure that people’s ability to vote is protected against intimidation and hindrance.
Elections are significant, because the results have a direct impact on our lives, from the prime minister, who makes lifetime appointments, to ministers in parliament and local government bodies, who decide whether or not you get the lights at the intersection near your house.
In 1947, with India gaining independence, it adopted the system of the universal adult franchise taking lessons from the Western Countries. It means that the Indian Constitution guarantees the right to vote to all individuals over the age of 18 who are of sound mind, regardless of their caste, religion, or socioeconomic background. The right to vote is regarded as one of a citizen’s most fundamental and inherent rights. As a result, the Indian constitution grants people specific advantages that safeguard the safety and security of their voting rights and so prevent any abuse of such rights.
There are two types of voting rights: direct and indirect. We can talk about direct voting rights when citizens vote without any middleman for members of a representative body. Indirect voting rights, on the other hand, are when voters simply elect representatives or an electoral college, which subsequently elects members of a representative body.
The right to vote and be elected in genuine, periodic elections is intrinsically linked to several other human rights, the enjoyment of which is crucial to a meaningful electoral process. These prerequisite rights include:
• the right to freedom from discrimination;
• the right to freedom of opinion and expression;
• the right to freedom of association and peaceful assembly; and
• the right to freedom of movement.
In casting votes, voters must be assured of freedom of voting, something especially emphasised by electoral legislation. There should not be any kind of direct/indirect pressure upon the voter to choose their representative; they should have their own free will.
RIGHT TO VOTE UNDER INTERNATIONAL LAW
The right to vote has become a well-accepted part of International law. Significant international treaties and conventions ensure citizens’ right to universal and equal suffrage. Out of 119 electoral democracies surveyed almost 108 guaranteed their citizens the right to elect their political representatives. In addition to the constitutions of many states, many international conventions and declarations provide for the right to vote. Many international conventions and declarations enacted by the United Nations and various regional organisations recognise nations’ affirmative obligations to defend their citizens’ right to vote.
•The Universal Declaration of Human Rights, 1948.
UDHR, a preeminent global document on Human Rights under its Article 21 lays out that everyone has the right to take part in the governance of his country directly or indirectly through freely chosen representatives. of citizens to participate in governance and enjoy Universal Suffrage:
“The will of the people shall be the basis of the authority of government; this will be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or equivalent free voting procedures.”
The declaration being non-binding, this article has not been accepted as generally enforceable customary international law.
•The International Covenant on Civil and Political Rights
In contrast to the UDHR, Article 25 of the ICCPR has a binding effect because it has been ratified by a large number of signatories. As per Article 25 of ICCPR, 1966:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”
•The European Convention on Human Rights and Fundamental Freedoms
The Convention was established by the members of the Council of Europe in 1950. Article 3 of Protocol 1 (P3-1) of the European Convention states that:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
The right to vote has been recognised as a fundamental right time and again by international declarations and conventions which acts as an example for other countries to follow.
RIGHT TO VOTE UNDER INDIAN LAW
The right to vote is a well-accepted part of the Indian Legislation. Article 326 of the Constitution of India provides for the Right to Vote to every citizen of the country. Article 326 states that:
“The elections to the House of the People and the Legislative Assembly of every State shall be based on adult suffrage; that is to say every person who is a citizen of India and who is not less than eighteen years of age and is not disqualified on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practices shall be entitled to be registered as a voter”.
Also, Section 62 of the Representative of the People’s Act, 1951 states that “Every person who is, for the time being, entered in the electoral roll of any constituency shall be entitled to vote in that constituency”.
To put it differently, every citizen of India who is not less than 18 years of age has an inherent right to get himself enrolled in the electoral roll and is empowered to vote in the constituency in which his name is registered irrespective of any sort of discrimination based on caste, creed, religion, sex, etc unless he is not disqualified under the Constitution or any law to which he is subject on the grounds of commission of any crime, unsoundness of mind, non-residence or corrupt or illegal activities, etc.
Prior to this, the age for universal suffrage was 21 years for both men and women. The Sixty-first Amendment of the Constitution of India or the Constitution (Sixty-first) Amendment Act, 1988, reduced the voting age for elections to the Lok Sabha and legislative assemblies of several states from 21 to 18 years. This was met by amending Article 326 of the Constitution dealing with the elections of the same.
The Supreme court has time and again held in many cases the citizens’ right to vote. The Verdict of the Apex Court in People’s Union for Civil Liberties v. Union of India reiterated that the voters under the purview of Article 19(1)(a) of the Constitution have an inherent right to have basic information about electoral candidates. Even though the right to vote is in itself may not be a fundamental right but the expression of opinion through the final act of casting a vote is a part of the fundamental right of speech and expression as guaranteed under Article 19(1) (a) of the Constitution. The Supreme Court, in this case, directed the use of NOTA (None of the Above) as an option available to the citizens in the context of direct elections to the Lok Sabha and the representatives of the State Assemblies.
The Supreme Court in its judgement directed the Election Commission of India, to provide necessary provisions in the ballot papers/EVMs and provide another button called NOTA in EVMs so that the voters who are not willing to vote for anyone exercise their right in consonance with their right to secrecy.
The Apex Court struck down the Representation of the People (3rd Amendment) Act, 2002 stating that it was violating the right of voters to know the antecedents of the candidates contesting elections to legislatures under Article 19(1)(a) of the Constitution of India. The Apex Court reaffirmed its earlier ruling in Union of India v. Association for Democratic Reforms.
NRIs are citizens of the country who are unable to vote in the country’s elections because they are not present in their place of residence due to employment or other reasons. NRIs were formerly denied the right to vote in the country’s elections.
However, a subsequent modification permitted NRIs to vote in Indian elections even if they had been out of the country for more than six months.
BARRIERS IN EXERCISING THE RIGHT TO VOTE AND WAYS TO REMOVE THEM
There are numerous obstacles to exercising one’s right to vote.
The Constitution of India, 1950, lays down who all can vote for the Lok Sabha Elections and Elections to the State Assemblies. Everyone who is 18 years or above age can exercise their right to vote with few exceptions on the grounds such as commission of any crime, unsoundness of mind, non-residence or corrupt or illegal activities, etc.
•Prisoner’s Right to Vote Hampered:
In India, Prisoners are not entitled to the right to vote which is seen as a gross violation of their fundamental rights, they being the legal citizens of the country like any other, are entitled to those rights in the same capacity.
Many countries around the world such as Canada, the Czech Republic, Denmark, Finland, France, Japan, Norway, Sweden allow their inmates the equal right to vote like other citizens of the country. This limitation on the prisoners and the ones who committed any offence acts as a huge barrier in the exercise of the right to vote.
•Mental Illness and Suffrage:
The lack of voting rights for those suffering from intellectual and psychological disabilities is a particularly pernicious obstacle to the exercise of the right to vote. The term unsoundness of mind specified as an exception under the Representation of People’s Act, 1961 is too vague and undefined. There is a lack of an objective standard which the “competent court” can use to determine what constitutes unsoundness of mind. Even if a person’s impairment does not affect his ability to comprehend a candidate’s position in the elections and make a decision, he can be denied the exercise of his right to vote under this legal framework.
Poverty is yet another barrier to the proper exercise of the right to vote. India has a headcount poverty ratio of 20.8% of the total population, playing yet another vital role in bridging the gap to the actual and free and fair utilisation of the Right to Vote. Many a time, different political leaders take advantage of their helplessness and try to Bribe these poor people by offering them amazing baits as offerings to which they fail to prey.
•Lack of Awareness:
People living in rural areas and those living below poverty lines having no access to proper education are still unaware of their basic fundamental rights which also includes the right to vote. Lack of knowledge acts as a barrier in this instance, the more knowledgeable an individual is the more likely he is to exercise his right to vote as he knows the value of having some influence on the political system by the exercise of his right. The most effective way to change these percentage differences of participation is to encourage people to stay in schools and conduct awareness drives to make people know their rights and duties.
•Undue Influence by Local Leaders:
Many a time local leaders make use of undue influence by way of coercion or other allurements offering them money or liquor to get the innocent and poor voters to vote for them. Though this practice has considerably been stopped in the recent ages, there are still instances of many such cases.
•Poorly Trained Poll Workers:
Poll Workers on duty need to be efficiently trained to follow the proper protocols related to checking IDs and looking into the secrecy of the procedure.
However, poll workers are Ill-equipped to execute their tasks due to a lack of funds and dedication to make voting welcome and convenient. This will further help in the proper realisation of the Right to vote for every citizen.
The right to vote is an inherent and fundamental right ensured to every citizen of the country under the Constitution of India. It is a well recognized right under different International Conventions and Declarations. While there are many barriers to the exercise of the right to vote such as lack of awareness, lack of resources, discrimination against certain groups of people, poverty, etc still India is trying its best climbing the ladder of development.
It is the need of the hour to try our best to eliminate these measures by adopting some of these simple measures and taking examples from other models of the world and implementing it to our model of election to remove the discrepancies and realize the democracy in its true spirit by guaranteeing and upholding right of every citizen.
There are numerous obstacles to exercising one’s right to vote. The Constitution of India, 1950, lays down who all can vote for the Lok Sabha elections and elections to the state Assemblies. Everyone who is 18 years of age or above can exercise their right to vote with few exceptions on the grounds such as commission of any crime, unsoundness of mind, non-residence or corrupt or illegal activities, etc.
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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