Presidential election: Right to vote or not to vote

New Delhi: With certain doubts having been created in a section of political parties about the compulsion for voting in the forthcoming presidential election, the Election Commission of India (ECI) has said that contrary to reports, there was no such compulsion on any of the electors (voters) under the prevailing law. Certain doubts had arisen in the minds of some of the electors regarding the current presidential election, to the effect whether a member of a political party voting in defiance of the party’s decision would attract disqualification on the ground of defection under the Tenth Schedule to the Constitution 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. The ECI on Thursday clarified saying: “The Commission would like to state that the voting at election to the 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 171-A (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’, it further said. 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, the EC said, adding 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 171-C of the IPC. The Commission also said 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 Supreme Court in Kuldip Nayar v Union of India case 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 Supreme Court had ruled that an elector would not attract the penal provisions of the Tenth Schedule for having so voted at the Rajya Sabha election. Supreme Court’s observations in the case of Kuldip Nayar and Pashupati Nath Sukul, 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 forthcoming election will not come within the ambit of disqualification under the Tenth Schedule to the Constitution and the electors (voters) are at liberty to vote or not to vote as per their own free will and choice.

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