Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. 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.
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 Writ Petition directed to provide a NOTA option on the EVM and ballot papers so that the electors who do not want to vote for any of the candidates can exercise their option in secrecy. Thus by casting this protest vote people can show their dissent and disapproval to these candidates.
The Supreme Court held that the provisions of Rule 49-O under which an elector not wishing to vote for any candidate had to inform the Presiding Officer about his decision, are ultra vires Article 19 of the Constitution and Section 128 of the Representation of the People Act, 1951.
Rule 49-O was a rule in the Conduct of Elections Rules of India, which governs elections in the country. It described the procedure to be followed when a valid voter decides not to cast his vote, and decides to record this fact.
49-O states that 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, decided 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.
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.
Positive features in NOTA:
• Voter’s participation is an essence of democracy. Introducing a NOTA button can increase the public participation in an electoral process. The voters’ participation in the election is indeed the participation in the democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India.
• NOTA option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity
• 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. Thus in a vibrant democracy, the voter must be given an opportunity to choose ‘None of the Above’ (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting.
• Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate thinks about them.
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.