In a landmark judgment with potentially significant implications for voting and election rights, the Manipur High Court recently declared that the act of casting a vote is an integral part of a voter’s right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India [Thounaojam Shyamkumar vs Lourembam Sanjoy Singh].
Justice MV Muralidaran, who has recently been transferred to the Calcutta High Court, delivered this ruling on October 13. The decision centered on a voter’s right to be informed about a candidate’s criminal history in the context of elections.
The Court asserted, “Article 19(1)(a) of the Constitution of India provides for freedom of speech and expression. Voters’ speech or expression in the case of an election would include casting votes, meaning that voters express themselves by casting their votes.”
It emphasized that a voter’s right to be aware of a candidate’s antecedents, particularly their criminal record, is fundamental for the preservation of democracy. Justice Muralidaran, who served as Acting Chief Justice at the time, stated, “The voter may think before choosing to elect lawbreakers as lawmakers.”
This judgment came as the Court rejected the petitions of Thounaojam Shyamkumar, a Member of Legislative Assembly (MLA) from the Bharatiya Janata Party (BJP), seeking the dismissal of his election from the Andro Assembly Constituency in the 2022 Legislative Assembly Election. Notably, the charges did not originally include Section 306 of the Indian Penal Code (IPC), which pertains to abetment of suicide, in the initial charges against the accused.
The legal status of the right to vote has been a matter of debate since the inception of the Constitution. While it has not been officially recognized as a fundamental right, it has mainly been considered a legal or statutory right in various judicial pronouncements.
Interestingly, in a Constitution Bench judgment earlier in the year, Justice Ajay Rastogi expressed the view that the right to vote is indeed a fundamental right. He argued, “The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen’s life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21.”
However, the majority in the same judgment, led by Justice KM Joseph, opted not to make a final pronouncement on this issue, considering the view taken by a prior Constitution Bench in Kuldip Nayar and Others v. Union of India and Others.
In the Kuldip Nayar case, the top court rejected the notion that the “right to vote is a constitutional right besides being a facet of the fundamental right under Article 19(1)(a) of the Constitution.”
Nonetheless, a division bench of the Supreme Court later in the year criticized the paradox of not recognizing the right to vote as a fundamental right in India, despite democracy being an essential feature of the Constitution.
In the case at hand, Shyamkumar’s election was challenged by the runner-up candidate, Lourembam Sanjoy Singh, and his brother, Lourembam Sanjit Singh, on the grounds of non-disclosure of information regarding a pending criminal case against him. The petition also alleged improper declaration of information concerning Shyamkumar’s wife’s non-agricultural land.
The Court determined that the question of whether the case against Shyamkumar was deliberately omitted from the nomination papers must be addressed during the trial. It also made a similar observation regarding the mention of non-agricultural and agricultural land in the relevant columns.
Justice Muralidaran opined that the issue of whether the alleged false affidavit would constitute a violation of the provisions of Section 33 of the Representation of People Act, rendering the election void, should be considered during the trial.
Ultimately, the Court rejected the petitions filed by the MLA, concluding that it cannot be said that the election petitions against him lack a clear statement of material facts. The Court further noted that an election tainted by corrupt practices, illegalities, and irregularities as outlined in Sections 100 and 123 of the Representation of People Act cannot be recognized as the decision of the majority of the electorate.
The bench emphasized that the Courts have a duty to examine such allegations and should not adopt an unduly hyper-technical approach, remaining mindful of the ground realities.
MLA Thounaojam Shyamkumar was represented by Advocate M Gunedhor, while Senior Advocate HS Paonam and Advocate BR Sharma represented the respondents.
