Anti-Defection Law Does Not Apply To Presidential Elections: ECI Issues Clarification

The Election Commission of India, on Thursday, clarified that the anti-defection law does not apply to Presidential Elections.

“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,” the clarification stated.

The ECI explained that while political parties are free to canvas or seek votes of electors, or request them to refrain from voting, no whip can be issued by the parties to their members to vote in a particular manner. Such a direction, it said, would amount to exertion of undue influence within the meaning of Section 171C of the Indian Penal Code.

It, further, clarified that the voting for the election of the President of India is not compulsory, similar to the voting at elections to the House of the People and State Legislatures. It relied on the definition of the ‘electoral right’ of a voter as per Section 171A (b) of the Indian Penal Code, which states it 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,” the clarification went on to state.

The ECI clarification places reliance on the Supreme Court judgments in the case of Kuldip Nayar v. Union of India, AIR 2006 SC 3127, and Pashupati Nath Sukul v. Nem Chandra Jain Air 1984 SC 399. While these cases point towards non-application of anti-defection law to elections to the Rajya Sabha, the ECI opined that the observations would apply to Presidential elections as well.