Gaurav Singh, LL.M
There are certain doubts have arisen in the minds of some of the electors at the current Presidential Election which is going to be held, 2017 to the effect whether a member of a political party voting in confrontation of the political party’s decision would attract the disqualification on the ground of defection mentioned under the Tenth Schedule of Indian constitution. On the other hand whether the political party taking such decision would be liable to any penalty for issuing direction to their party members to vote in a particular manner or not to vote at all. It was evident in the past also, similar points were raised during the Presidential Elections. The Election 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.
“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 Kuldip Nayar v. Union of India , , 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 Kihoto Hollohan v. Zachillhu, , 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, 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 as mentioned in 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 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 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.”
Conclusively, It can be said that members of the any party as well as independent members who is eligible to vote in presidential election are free to vote as per their choice. The very object of this provision to protect members from anti defection law in order to exercise their right to vote in presidential election as they are representative of the people of respective constituencies and being the executive head of the state the election of the president free from any external pressure.