Eight years after giving voters the option to use NOTA – that’s None of The Above options in the elections, the Supreme Court has now sought responses from the Centre and the Election Commission of India on whether it would be legally permissible to reject all candidates in the fray if NOTA votes exceeded that of the candidate securing the highest number of votes.
The top court was hearing a plea, that seeks to direct the poll panel to nullify an election result and conduct a fresh poll if the maximum votes are for None of the Above in a particular constituency.
The petition says that the right to reject and elect a new candidate will give power to the people to express their discontent.
If voters are dissatisfied with the background or performance of contesting candidates, they will opt for NOTA to reject such candidates and elect a new one.
The contesting candidates rejected in the nullified elections, shall not be allowed to participate in the fresh election.
This, the petitioner, contends, will help check the steadily rising percentage of candidates with criminal antecedents and their chances of winning.
Although, while hearing the plea, CJI Bobde said that in our electoral system, such a move would be counter-productive.
Many seats in Parliament and assemblies could go vacant and constituencies would go unrepresented for a long time.
In this article, we will discuss the significance of NOTA, should it be given more teeth to ensure that political parties are more responsible in selecting candidates and if it is to be strengthened, what should be the best way to go about it.
Edited Excerpts from the Debate
Is there a scope of ‘re-election’, if NOTA gets the highest votes?
Rule 64 of The Conduct of Election Rules, 1961 says that the returning officer shall declare a candidate who secures the maximum number of votes as elected.
Now, NOTA is not a candidate, and therefore even if NOTA gets the highest number of votes cannot be declared as elected or the election cannot be nullified even if 99.99% vote would go to NOTA.
Unless this rule is amended, there is no scope for having re-election.
Analysing NOTA voting patterns
In a democracy, a single vote counts. Many a time, a candidate wins by a margin of one vote. However, the same value does not hold for those who choose to go with NOTA.
The NOTA has no arithmetic value. It is a neutral vote which isn’t counted towards the final tally, thereby making it distinct from a negative vote.
In 2014, 1.11% of the overall vote share was under NOTA. In 2019, it increased to 1.08%. The results show that NOTA is decreasing.
Does India need the ‘right to reject’?
The right to reject has the potential to check major menaces of democracy:
Right to reject contesting candidates would mean true democracy as the people would be able to elect their representatives in the true sense and it will make contesting candidates accountable in their functioning as if electors will reject them, they would not get a next chance of contesting.
The ‘right to Reject’ was first proposed by the Law Commission in its 170th Report in 1999.
Similarly, the Election Commission endorsed 'Right to Reject', first in 2001, under Mr. James Lyngdoh (the then CEC), and then in 2004 under Mr. TS Krishnamurthy (the then CEC), in its Proposed Electoral Reforms.
Likewise, 'Background Paper on Electoral Reforms', prepared by the Ministry of Law in 2010, proposed that if a certain percentage of the vote is negative, then the election result should be nullified and a new election should be held.
SC on ‘right to reject’: If the right to vote is a statutory right, then the right to reject a candidate is a fundamental right of speech and expression under the Constitution.”
NOTA is an effective tool to gauge the level of dissatisfaction amongst the voters. It can encourage greater participation in the democratic process as it disapproves of all the candidates nominated.
However, the need of the hour is to wake up the apolitical and pseudo-political citizens of our nation and make them realize the importance of their vote.
What is NOTA?
NOTA, or "None of the Above", is the option that enables the voter to officially register a vote of rejection for all candidates who are contesting.
If a voter chooses to press NOTA it indicates that the voter has not chosen to vote for any of the party.
The main objective of the ‘NOTA’ option is to enable electors who do not wish to vote for any of the candidates to exercise their right to reject without violation of the secrecy of their decision.
The voter must be eligible to register a vote of rejection if they feel that the contesting candidates do not deserve to be voted for.
The Right to vote granted to all citizens must allow the vote of disapproval.
How did it start?
On 27 September 2013, the Supreme Court of India ruled that the right to register a "none of the above" vote in elections should apply, while ordering the Election Commission to provide a button for the same in the electronic voting machines.
The ECI introduced a particular symbol for the ‘None of the Above’ option to allow the voters to exercise NOTA.
This symbol appears in the last panel on all Electronic Voting Machines (EVMs).
NOTA was used for the first time in the 2013 assembly elections in five states - Chhattisgarh, Mizoram, Rajasthan, Delhi, and Madhya Pradesh - and later in the 2014 General Elections.
Similar provision before NOTA
Before NOTA came into existence, there was Section 49 (O).
Under Section 49 (O) of the Conduct of Elections Rules, 1961, a voter could enter his electoral serial number in Form 17A and cast a negative vote.
The presiding officer would then put a remark in the form and get it signed by the voter. This was done to prevent fraud or misuse of votes
This provision was deemed unconstitutional by the SC as it did not protect the identity of the voter
Under it, the poll officials got a chance to find out the reason behind the rejection of a candidate through the voter's remarks in Form 17A.
Under NOTA, the officials cannot find out the reason and the identity of the voter is also protected.
What was before NOTA?
Before the introduction of the NOTA option, rule 49-O under the Conduct of Election Rules, 1961, allowed voters to register a vote of disapproval or rejection if they felt none of the candidates were worth voting for.
However, the secrecy of the ballot was violated as the voter had to inform the presiding officer of his/her decision to not vote, and an entry was made in the register against his/her name.
This also puts voters in danger of being targeted or harassed by political parties and candidates.
There are more than 12 countries where the voters have the option for NOTA. Besides India, it exists in countries like France, Sweden, Belgium Greece, Belarus, Spain, Bangladesh, Brazil, Colombia, Chile, and Ukraine.
A few states in America also allow NOTA votes. The state of Texas in the US has had the provision since 1975. However, the provision has faced opposition there.