“Democracy is all about choices and voters will be empowered by this right of negative voting.” (Sathasivam, 2013).
This post addresses the latest step the Supreme Court has taken in terms of cleansing politics- the case of People’s Union of Civil Liberties v Union of India (herein after PUCL v UoI). This was theSeptember judgment in which the SC directed the Election Commission to introduce the ‘None of the Above’ Option (or NOTA) in electoral ballots and EVMs.
In the backdrop of the recent elections in Delhi, the Union Elections 2014 are once again much anticipated. In the months leading up to the elections there have been a number of judicial decisions in the field of Electoral Law. First we have the Lily Thomas v UoI judgment by the Supreme Court demanding any person convicted of serious criminal charges (jail sentence of two years or more) immediately be removed as MP or MLA, as the case may be. Then we have the controversial case of CEC v Jan Chaukidar, where the Apex Court upheld, (allegedly wrong),that the 2004 decision of the Patna High Court barring anyone in police or judicial custody from standing for elections. The first few steps towards proper electoral reform have been taken, through a gateway provided by the Constitution of India.
In PUCL v UoI, a writ petition was filed, contending that Rule 41(2), (3) and 49-O of the Conduct of Election Rules, 1961were ultra vires as they violate the secret ballot systemwhich is fundamental to the free and fair elections required to be maintained by Section 128 of the Representation of the People Act, 1951 and Ar. 19(1)(a) of the Constitution,as well as being in violation of Rules 39 and 49-M of the Rules, 1961(which enforce the secret ballot system), and Ar. 21. The Supreme Court passed the judgment that all EVMs must contain an additional option of “none of the above” (NOTA) so that every citizen has the opportunity to exercise his right not to vote or his right to exercise a negative vote in secret.
At this point it is necessary to mention that it has always been possible for voters to exercise the option to refrain from voting. Rule 49-O of the Rules, 1961 performs the same function as NOTA will, so it begs the question where NOTA has really changed anything for the voter. The difference primarily lies in the fact that under the Rules of 1961 a person would have to identify himself/herself before registering that he/she was withholding their vote. Either a thumb mark or signature of the elector would be taken; the electoral officer would know that the person had cast a ‘non-vote’. The total number of such votes were available to anyone under the RTI. This violates the democratic system of the secret ballot. The lack of secrecy meant that there was always the possibility of bribery and coercion during or after the vote.
The Election Commission had made such recommendations to the Prime Minister twice before in the years 2001 and 2004. The main concern is that if the vote isn’t in secret then election malpractices will be prevalent. Those electors who wished to caste a non-vote might fear the leaking of their identity to the public and hence not vote at all. This will seriously diminish electoral participation. Moreover, the non-vote is meant to tell politicians what they are offering isn’t good enough yet the statistics won’t give them an actual picture since many people will abstain from voting or their votes might even be discarded. People also might be coerced into voting for a certain candidate instead of casting a ‘non-vote’, the election officers might use this to their advantage.The democratic electoral mechanism was broken down under this provision.
With NOTA however, the meaning of free and fair elections has been extended and is protected under Ar.19(1)(a).The SC reasoned that the act of voting in secrecy-separate from the practicalities of an election- is an integral part of our fundamental rights and necessary in a democracy such as ours. The right to vote is a statutory right, but the freedom to exercise choice during voting comes under the canopy of the fundamental right to freedom of expression. Ar.19(1)(a) thus protects our right to choose to either vote for one or vote for none of the standing candidates in an election.
Misconceptions: NOTA and the RTR
After NOTA came into being, many were under the impression that it had the power to render elections void. This is partly due to media hype and partly due to a misunderstanding of the term itself. Many newspapers referred to NOTA as the Right to Reject (RTR).The Election Commission has pointed (here) out that there is a difference between NOTA as used in our country and the Right to Rejectin countries like Colombia and the UK.Through NOTA you are simply saying that you are dissatisfied with all the standing candidates, you are voting for none of the above. These votes are counted and even if the NOTA receives the majority of the votes, it doesn’t make a difference- the next highest vote wins the election. This effectively means that if a voter uses the ‘None of the Above Option’ on the EVM then his/her vote is counted but even if the majority votes go to NOTA the next highest vote receiving party will win. Fresh elections will not be held.RTR on the other hand means you are rejecting every candidate and if a majority (that is either more than 50% of the voters or more than the votes received by all candidates) vote RTR then there will be a fresh elections.
Significance of the NOTA
NOTA has been criticized for being ineffective in terms of actually cleansing politics. However, it would be wrong to term it completely useless. The motive behind it was that symbolically it tells political parties that what they are offering isn’t good enough, that it is high time we are presented with an opportunity to vote for clean, un-corrupt and qualified representatives to run the country. The SC in this judgment said it “would lead to a systemic change in polls and political parties will be forced to project clean candidates.” The introduction of NOTA can be viewed as the judicial reflection of the public’s desire to put moral pressure on political parties.
Moreover, as the Supreme Court hopes,NOTA might increase the participation in elections, as those who refrained from voting because they didn’t think any of the candidates deserved their vote now can push a button which reiterates the same. This also allows for the possibility of introducing compulsory voting in the future, which means the entire country will be represented.
Paving the way to RTR
Political analysts also see it as a positive advancement towards achieving RTR in our country. The AamAadmi Party is campaigning for this exactly(available here).The RTR brings with it its own set of problems and predicaments when it comes to holding fresh elections. Nonetheless, as a democratic country, it is unacceptable that people not be given a chance to refuse their representatives if they are considered to be unfit. The NOTA might not guarantee the birth of RTR in our country I believe it is an indication of the rising political consciousness of our country.
RTR is an absolute step and it seems that NOTA judgment is an indication that our country might soon be ready for it. The debate as to whether RTR is possible or even desired in a country such as ours is backed well on both sides with various social political and economic arguments. The point is however that if we find RTR desirable then the Supreme Court has shown that is ready to help bring about political and electoral reform.