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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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION
The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.
The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.
Facts of the Case:
In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.
A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.
An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.
Contentions made by Parties:
On the following grounds, the petitioner sought the transfer of application.
An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.
It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.
On the following grounds, the respondent countered the submissions of the petitioner:
An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.
The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.
The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.
The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.
It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.
The Transfer petition was dismissed by the Court.
DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE
The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.
In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.
It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.
Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.
No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.
ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD
The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.
The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.
In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.
It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.
Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.
Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.
Following this, the Court observed:
The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.
It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.
The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.
The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.
SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED
The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.
The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.
It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.
However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.
It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.
Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.
While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.
IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC
The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.
FACTS OF THE CASE:
The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.
The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.
MUMBAI NCLT PROCEEDINGS
An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.
the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.
An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.
It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.
An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.
The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.
Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.
The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.
ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS
The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.
The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.
An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.
Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.
on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.
The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.
the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.
It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.
The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.
The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.
It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.
Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.
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