Anti-defection law does not apply to presidential poll: EC

Anti-defection law does not apply to presidential poll, the Election Commission clarified on Thursday.

No political party can issue a whip to its MPs and MLAs for a particular candidate, which would be constituted as an offence under section 171C of the IPC, the poll panel said, citing orders of the Supreme Court in related cases.

The EC said the MPs and MLAs, who constitute the electoral college, were at liberty "to vote for anyone or not to vote" in the presidential election "as per their own free will and choice.

The EC's reminder about the non-application of any whip or directive from any party to its MPs and MLAs was to clarify what it said "certain doubts" that have arisen in the minds of some electors.

The poll panel said these "doubts" related to the question whether a member of a political party voting in defiance of the political party’s decision would attract the disqualification on the ground of defection under the Tenth Schedule to the Constitution of India or the political party taking such decision would be liable to any penalty for asking their members to vote in a particular manner or not to vote at all.

The EC's statement comes amid the talk of the BJP-led National Democratic Alliance (NDA) expecting its nominee Ram Nath Kovind to win the support of many MPs and MLAs belonging to the opposition parties, disregarding their leadership's choice of former Lok Sabha speaker Meira Kumar.

During the past also, the EC said, similar questions were raised during the presidential elections. Reiterating its position, the poll panel drew attention to past clarifications that were issued through press notes.

“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 poll panel said.

The EC held that: "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 EC said.

The EC said 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  Supreme Court in Kuldip Nayar vs Union of India (AIR 2006 SC 3127).

In that case, the EC said, the question was 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 apex Court held that an elector would not attract the penal provisions of the Tenth Schedule for having so voted at the Rajya Sabha election.

It observed that "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 EC recalled, the Supreme Court had observed in Pashupati Nath Sukul vs Nem Chandra Jain (AIR 1984 SC 399) 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 poll panel noted that 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 (under 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, with the above-quoted observations of the Hon’ble Supreme Court in the case of Kuldip Nayar (Supra) and Pashupati Nath Sukul (Supra), will apply with equal force at the presidential election as well," the EC said.

Accordingly, in the EC'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.”