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Right to Reject: NOT-A Option!

Right to Reject: NOT-A Option!

With the next general elections due in May 2014, Lex Witness analyses the Supreme Court’s recent landmark judgment on ‘None of the Above’ option…

INTRODUCTION

Continuing with its series of electoral reforms ahead of the 2014 general elections, the Supreme Court on September 27 this year gave the citizens the right to reject all candidates in elections.

Hearing a petition filed by the People’s Union for Civil Liberties (PUCL), an non-governmental organization, against the Union of India, the apex court ruled that the Electronic Voting Machines (EVMs) should have a button that will allow the voters to choose “none of the above” (NOTA) option. The PUCL had moved the Supreme Court in 2004 with a plea that voters should have a right to negative vote, saying that it does not want to vote any of the candidates listed in EVM. It had sought directions to the Election Commission (EC), also a party to the case, to make provision in the EVMs providing NOTA option and that the right to say NOTA should be kept secret. As per current rules, a voter can choose to cast a “negative vote” by going to the polling booth, sign on the register, but not vote.

The petition by the PUCL was filed in the form of a writ petition (No. 161 of 2004) under Article 32 of the Indian Constitution. The Court, therefore, had to first judge its maintainability as it was contended that the Right to Vote is considered a statutory right. The Court held that although the Right to Vote is a statutory right, the decision taken by the voter is akin to the Freedom of Expression under Article 19(1) (a). Fundamental Right under 19(1)(a) of the Indian Constitution and statutory right under Section 79 of the Representation of People Act are also violated if right not to vote is denied. Thus, the court held that the writ petition was maintainable.

In this regard, the Court rejected the opposing party’s, i.e., the central government’s objection that the petition was not maintainable on the grounds that the right to vote is not a fundamental right and merely a statutory right. A three-judge Bench observed that the petition relates to the right of a voter and it was applicable to all voters of the country.

ARGUMENTS & JUDGMENT

While delivering the judgment, the Bench comprising Chief Justice of India P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi held that Election Conduct Rules 41(2) and (3) and 49-O of the Rules were ultra vires Section 128 of the Representation of the People Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting. Under Rule 49-O of the Conduct of Election Rules, 1961, a voter can ask the presiding officer to record that he is unwilling to vote anyone. The Court has, in fact, ruled that whether a voter decides to vote or not, his/ her secrecy has to be maintained, adding it cannot be said that if a voter decides his/ her vote, secrecy will be maintained under Section 128 of the RP Act read with Rules 39 and 49M of the Rules and if in case a voter decides not to cast his vote, secrecy will not be maintained. Therefore, a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows the secrecy to be violated, is arbitrary, unreasonable and violative of Article 19 and is also ultravires Sections 79(d) and 128 of the RP Act, the court ruled.

Advocate Meenakshi Arora, on behalf of her client, the Election Commission of India, had agreed with the fact that there was no secrecy in the present way to register abstention voting. The EC had asked that the NOTA button be allowed to be put in as a measure to ensure free voting even in case of abstention or rejection. The crux of the argument of the additional solicitor general, P.P. Malhotra, was that secrecy of ballot was extended only to those that had voted in favour of a candidate.

The Bench noted in its judgment: “For democracy to survive, it is essential that the best available men should be chosen… 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.” Thus the NOTA would indeed compel political parties to nominate sound candidates, the Bench opined.

On the Freedom of Expression, it said: “Article 19 guarantees all individuals the right to speak, criticise, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty”, and added that election is a mechanism that represents the will of the people.

The Court has now directed the EC to introduce the option for the voters and ensure the identity of the voters is guarded. Voters in Delhi, Madhya Pradesh, Rajasthan, Chhattisgarh and Mizoram — where Assembly elections are due in November — will have the right to reject option.

One fact that has been missed by those commenting on NOTA is that the judgment has paved the way for compulsory turnout/ voting in the future. By allowing for the NOTA option, and a possibility of right to reject, the arguments for compulsory turnout/voting will only be stronger. The Bench noted the NOTA option will “accelerate effective political participation in the present state of the democratic system and the voters will in fact be empowered”. The right to cast a negative vote, “at a time when electioneering is in full swing, will foster the purity of the electoral process and also fulfil one of its objectives, namely, wide participation of people”, it added.

ANALYSIS

While the judgment is historic, it will have little impact on the outcome of an election as negative votes will only be recorded on EVMs but not counted. The SC bench, while reading out the operative portion of the judgment, did not throw light on a situation in case the votes cast under no option head outnumber the votes polled for the candidates. It said that secrecy of votes cast under the no option category must be maintained by the Election Commission. Those in favour of negative voting have been demanding that re-election should be ordered in a constituency where more than 50 per cent of the voters reject all candidates. At present, the law doesn’t allow that.

However, the Court based the judgment on the need to reform the dwindling political mood in the country. It opined that a “lesser voter participation is the rejection of commitment to democracy slowly but definitely whereas larger participation is better for the democracy… If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same”.

The judgment was thus motivated by the need to not only have free and fair elections but also to remain in tune with the demands of a healthy democracy, where the voter is considered supreme, says Delhi based lawyer A. Chaudhury.

VOICES

The new rule is already being hotly debated. In an article in The Economic Times, former chief election commissioner S.Y. Quareshi noted that the judgment does not actually recognize this form of right to reject. Quareshi argued that since right to reject will mean that a re-election will have to take place in certain cases (if the rejection option receives more than 50 per cent of the votes or if the number of votes is greater than the highest number of votes for any candidate), it is not a desirable option, primarily noting the wastage/ lack of resources and the rights of the contestants.

“The SC is presuming that political parties are sensitive enough to buckle under pressure from NOTA votes. That is a little too optimistic. The only tangible outcome of this is that your secrecy is protected if you abstain and no bogus votes will be polled on your name,” Quareshi said. Contrary to his position, former CEC N. Gopalaswami in The Hindu has opined that the right of negative voting should extend to a right to reject all candidates.

CONCLUSION

Given the number of scams and lack of governance that has tainted the political scenario in India, this is indeed a welcome decision. The obvious task which now lies in front of the EC is to try and translate the judgment into a tangible outcome of using the right to reject option.

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