India recently celebrated its 15th National Voters’ Day on January 25th, 2025, commemorating the establishment of the Election Commission of India. Since the enforcement of the Indian Constitution, the Election Commission has introduced numerous measures to protect the rights of the voters. However, we cannot ignore the pivotal role played by the Hon’ble Supreme Court of India in safeguarding the interests of the voters.
In Indira Gandhi v. Raj Narain (1975) case the Hon’ble Supreme Court of India ruled that right to free and fair elections are an essential part of the Constitution’s basic structure. The court also ruled that the 39th Amendment of constitution which was introduced by Kesavananda Bharathi case i.e., clause (4) of the Article 329A was unconstitutional and the Court held that Parliament cannot amend the Constitution in a way that interferes with its basic structure. Article 329A was considered against these fundamental principles as it creates unfair distinctions and restricts the ability to challenge election results.
In Union of India vs Association for Democratic reforms (2002), the apex court addressed the issue of criminalization of politics, the Court ruled that voters have a basic right under the Indian Constitution i.e., “right to know” of the background of politicians contesting for public office. The court interpreted the “right to be informed” as a right arising from the freedom of speech and expression.
Affidavits from candidates describing any information pertaining to previous or ongoing criminal accusations or proceedings against them were to be obtained by the Election Commission. This includes details regarding the candidate’s prior criminal convictions, acquittals, and discharges. Additionally, the amount of penalty imposed on them if found guilty, as well as if the candidate has been charged with a crime carrying a minimum two-year imprisonment sentence before six months of filing their nomination.
In PUCL vs Union of India (2004), The Section 33B of Representation of People (Third Amendment) Act, which overturned the Association for Democratic Reforms (2002) ruling by stating that candidates contesting elections need not file affidavit of criminal antecedents and particulars as directed by the Court, was challenged by the Peoples Union for Civil Liberties in the Supreme Court of India.
This clause was declared illegal, null and invalid because it violated the “right of electors’ to know,” which is a component of the fundamental right to free speech and expression, and it obstructed free and fair elections, which are a key component of the Constitution. Consequently, it is now required that all criminal histories and antecedents of people contesting the elections be made public.
In Lily Thomas v. Union of India (2013), a two-judge Supreme Court bench decided that members of Parliament, Legislative Councils, and Legislative Assemblies who were found guilty of crimes for which they received a minimum sentence of two years imprisonment would no longer be able to serve in the house to which they were elected as of the sentencing date. Additionally, it declared that those found guilty would be immediately disqualified and invalidated the clause that gave convicted members three months to appeal their verdict and sentence.
In PUCL v. Union of India (2013), The Supreme Court has introduced NOTA, recognizing the distinction between the statutory right to vote and the freedom of voting as a facet of the constitutionally protected right to freedom of expression. The court found that a voter’s decision not to vote after evaluating candidates is a facet of the right to freedom of expression, protected under Article 19(1)(a) of India’s Constitution.
The court emphasized the importance of ballot secrecy, as fear of disclosure would constrain voter expression and decision not to vote. The court also considered various reasons why a voter might decide not to vote, such as not considering any candidate’s worthy. To give meaning to the constitutionally protected right to freedom of expression, the court emphasized the need for a ‘negative vote’ option in electronic voting machines (EVM) to protect free and fair elections.
In Association for Democratic Reforms v. Union of India (2024), in a unanimous verdict, the five-judge bench of the Supreme Court (SC), led by the Chief Justice of India (CJI), deemed the Electoral Bonds scheme as “unconstitutional,” The SC, while scrutinizing the legality of the electoral bonds scheme, ruled that anonymous electoral bonds infringe upon the right to information and Article 19(1)(a).
The scheme of electoral bonds is contrary to the goal of transparency in political finance and the court warned against the impact on the transparency aspect of political finance/funding and also it is submitted that exempting political parties from sharing details regarding contributions would keep information on foreign funding in the dark. All data related to electoral bonds will be published on Election Commission official website.
The Supreme Court of India has played a crucial role in ensuring the conduct of free and fair elections, often surpassing the Election Commission in certain aspects of upholding democratic principles. While the Election Commission of India (ECI) is the constitutional authority mandated to oversee and regulate elections, the SC has repeatedly stepped in to address issues that go beyond the ECI administrative and supervisory capabilities.
The Supreme Court’s proactive role has been instrumental in strengthening the framework of free and fair elections in India. Its contributions complement the efforts of the ECI, together creating a robust system that upholds the principles of democracy.
V. Abhinav Deep Dora, Assistant Professor and Akhila Penugondla 5th Year BBA LL. B(Hons.), Vignan Institute of Law, VFSTR Vadlamudi, Guntur