India is a Socialist, Secular, Democratic Republic and the largest democracy in the World. The modern Indian nation state came into existence on 15th of August 1947. Since then free and fair elections have been held at regular intervals as per the principles enshrined in the Constitution, Electoral Laws and System.
The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country.
The Constitution of India has vested in the Election Commission of India the superintendence, direction and control of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
But the election at present are not being hold in ideal conditions because of the enormous amount of money required to be spent and large muscle power needed for winning the elections. The major defects which come in the path of electoral system in India are: money power, muscle power, criminalisation of politics, poll violence, booth capturing, communalism, castism, non-serious and independent candidates, etc.
For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. But these days almost all candidates standing in elections are not upto to the expectations of people.
So the Supreme Court, in v. , upheld the constitutional right of citizens to cast a negative vote in elections.
In , the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. Both sides agreed on the fact that the combined effect of these rules was that persons who did not vote in elections (by the presiding officer) as having not voted.
Meaning of Rules 41(2) 41(3) & 49 (O) of Conduct of Election Rules 1961
Rule 41. Spoilt and returned ballot papers:
Rule 41 (2): If an elector after obtaining a ballot paper decides not to use it, he shall return it to the presiding officer, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked as "Returned: cancelled" by the presiding officer.
Rule 41(3): All ballot papers cancelled under sub-rule (1) or sub-rule(2) shall be kept in a separate packet.
49-O. Elector deciding not to vote: If an elector, after his electoral roll number has been duly entered in the register of voters in Form 17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decide not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.”
Form 17-A: Rule 49-O provides that if an elector, after his electoral roll number has been entered in the register of electors in Form 17-A, decides not to record his vote on the EVM, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and signature/thumb impression of the elector shall be obtained against such remark.
The petitioners argued that this was a violation of the right to secret balloting, protected by Articles 19(1)(a) and 21 of the Constitution.
The Court then found that in a system of direct elections, secrecy was essential in order to ensure the effectiveness of the vote – that is, elections could not be free and fair unless secrecy was maintained (that much is logical; naturally, the only way of preventing bribery, coercion and post-election reprisals is secrecy).
Further, since the freedom to vote naturally included the freedom to vote, it would be arbitrary to extend secrecy to one and not the other. The apex court said the right to vote and the right to say NOTA are both part of basic right of voters.
In addition, the act of not voting was as much a exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection.
The two main key components that came out of the Supreme Court judgment are:
· Right to vote also includes a right not to vote i.e. right to reject. Right to reject implies that a voter while voting has every right not to opt for any of the candidates during an election. Such a right implies a choice to remain neutral .This may happen when a voter feels that none of the candidate in a candidacy deserves to be elected. It happens by the way of his choice, belief, thinking and expression. Right to reject has its genus in freedom of speech and expression.
· Right to secrecy is an integral part of a free and fair election. It is a central right of an elector to cast his vote without fear of reprisal, duress or coercion as per Article 21 of the Indian Constitution. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14, Article 19(1)(a) and Article 21 of the Indian Constitution. Secrecy of the voters is necessary in order to maintain the purity of the electoral system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted in direct elections to Lok Sabha or State Legislatures, maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear of being victimized if his vote is disclosed.
The judgment of the Hon’ble Supreme Court in this case is significant not only because it introduced the option of NOTA on the EVMs but also because it dignified the right to vote.
By declaring that right to vote is essentially a right to free expression, they brought this right under the purview of fundamental rights. Furthermore, the court also declared that the right to vote included the right not to vote.
Negative features in NOTA:
As per the provisions of clause (a) of Rule 64 of Conduct of Elections Rules, 1961, read with Section 65 of the Representation of the People Act, 1951, the candidate who has polled the largest number of valid votes is to be declared elected by the Returning Officer. NOTA do not mean rejection. That may sound self-defeating to the whole point of NOTA but according to Indian democracy the rule of first past the post is declared the winner. Thus, if out of total 10,000 votes, 9999 voters elect NOTA option and just one candidate gets even a single vote, then the latter wins from that constituency.
There has been a debate for re-election to be held in case the total number of NOTA votes crosses a certain percentage. However, this has no legal standing currently and hence NOTA is merely cosmetic in nature.
NOTA can only work only when it is paired with Right To Recall option where voters can recall candidates they have elected. This will instill fear in candidates to do well in office and also lead to giving NOTA importance because it acts as a pre-cursor to public displeasure. Currently, Right To Recall does not exist in the electoral process in the country, which only weakens NOTA.
Recommendations for improving NOTA
According to Association for Democratic Reforms (ADR) and National Election Watch (NEW) following provisions has been recommended with respect to the counting of votes as registered against the NOTA in a particular constituency:-
a) Votes cast for the ‘none-of-the-above’ option should also be counted.
b) In case the ‘none-of-the-above’ option gets more votes than any of the candidates, none of the candidates should be declared elected and a fresh election held in which none of the candidates in this election are allowed to contest.
c) In the following elections, with fresh candidates and with a ‘none-of-the above’ option, only that candidate should be declared elected who gets at least 50 percent + one of the votes cast.
d) If even in this round, the ‘none-of-the above’ option gets the highest number of votes cast or none of the candidate gets at least 50 percent + one of the votes cast, then the process should be repeated.
This may appear to be a cumbersome and tedious process but it will nudge the entire system in the direction of (a) better representativeness among the elected representatives by reducing the sectarian effects of vote banks, and (b) encouraging political parties to put up better candidates.