Centre tells SC right to vote differs from freedom of voting
The Centre responded to a petition arguing that “uncontested elections” violate constitutional principles and democratic fairness.
Supreme Court to Examine Difference Between Right to Vote and Freedom of Voting
New Delhi — The Supreme Court on Thursday, November 6, 2025, is set to hear a case that could redefine the understanding of electoral rights in India. The bench will examine the Centre’s argument that the “right to vote” in an election is distinct from the “freedom of voting,” and that while the former is a statutory right, the latter is protected under the fundamental right to freedom of speech and expression.
The case arises from a petition challenging Section 53(2) of the Representation of the People Act, 1951, along with Rule 11 and Forms 21 and 21B of the Conduct of Elections Rules, 1961, which govern uncontested elections. The petitioners argue that these provisions violate the constitutional right to freedom of speech and expression under Article 19(1)(a) by automatically declaring candidates elected without a proper vote, effectively undermining the democratic principle of choice.
Section 53(2) applies when the number of candidates equals the number of seats to be filled in a State Assembly or Lok Sabha election. In such scenarios, the law instructs the Returning Officer to declare all candidates duly elected using Form 21 in a general election or Form 21B for a casual vacancy. The provision has long been criticized for sidelining the exercise of electoral choice, especially in constituencies where a single candidate runs unopposed.
In its affidavit, the Centre emphasized the distinction between the right to vote and the freedom of voting. According to the government, the right to vote is only a statutory entitlement conferred by Section 62 of the Representation of the People Act, 1951, which comes with certain limitations prescribed by law. It is conditional and does not guarantee that every citizen will always have the ability to cast a vote in every scenario.
On the other hand, the freedom of voting encompasses the ability to exercise genuine choice, whether through a positive vote for a candidate or a negative vote through the NOTA (None of the Above) option. This freedom, the Centre argued, only comes into play when a poll is actually conducted. If no election is held, as in uncontested cases, the freedom of voting cannot be exercised, but the statutory right to vote is not considered violated because the law provides for specific circumstances under which elections are uncontested.
The government’s position highlights a nuanced legal distinction: while citizens may have the formal right to vote, the practical exercise of that right—the ability to make a choice—is dependent on the conduct of a poll. The Centre contends that Section 53(2) does not infringe on fundamental rights because it merely provides a procedural mechanism for uncontested elections and does not prevent citizens from participating in the democratic process where elections are contested.
The petitioners, however, argue that uncontested elections erode the democratic essence of elections, reducing citizens to passive observers rather than active participants in choosing their representatives. They maintain that every citizen should have the freedom to express their preference through a vote, and automatically declaring candidates elected undermines this fundamental democratic principle.
Legal experts note that the case raises critical questions about the balance between statutory law and constitutional rights. If the Court sides with the petitioners, it could necessitate reforms in how uncontested elections are handled, potentially requiring even unopposed candidates to undergo a formal voting process. Such a judgment could also strengthen the interpretation of freedom of expression as extending to the right to make a meaningful choice in electoral contests.
The case also underscores the broader challenge of balancing administrative efficiency with democratic values. Provisions like Section 53(2) are intended to avoid unnecessary elections when outcomes are predetermined, thereby saving public funds and administrative resources. Yet, critics argue that efficiency should not come at the cost of citizens’ ability to participate fully in the democratic process.
As the Supreme Court prepares to hear arguments, both sides are expected to provide detailed analysis of historical precedents, legislative intent, and constitutional principles. The decision could have implications far beyond the specific provisions of Section 53(2), potentially shaping the way electoral rights are understood and exercised across India.
For voters, political parties, and legal scholars, the case represents a pivotal moment. It invites reflection on what it truly means to have the right to vote and how that right intersects with the freedom to vote, which allows citizens to exercise choice and voice in shaping their government. The judgment, when delivered, will likely clarify the limits of statutory rights and the scope of fundamental freedoms in the democratic process, reinforcing the Court’s role in upholding the core principles of India’s electoral system.