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How the right to reject will put pressure on political parties

It was in July 2004, just days after UPA-I government was sworn in, that the Chief Election Commissioner TS Krishna Murthy wrote to the Prime Minister. In his letter he listed some electoral reforms for the prime minister to take up at the earliest. Read letter here. One of the CEC's proposals was to introduce a "None of the Above" (NOTA) button on the Electronic Voting Machines.

In that letter the had CEC said: "In the voting using the conventional ballot paper and ballot boxes, an elector can drop the ballot paper without marking his vote against any of the candidates, if he chooses so. However, in the voting using the EVMs, such a facility is not available to the voter. Although, Rule 49-O of the Conduct of Election Rules, 1961 provides that an elector may refuse to vote after he has been identified and necessary entries made in the register of electors and the marked copy of the electoral roll, the secrecy of voting is not protected here in as much as the polling officials and the polling agents in the polling station get to know about the decision of such a voter. The Commission recommends that the law should be amended to specifically provide for negative / neutral voting. For this purpose, Rules 22 and 49B of the Conduct of Election Rules, 1961 may be suitably amended adding a proviso that in the ballot paper and the particulars on the ballot unit, in the column relating to names of candidates, after the entry relating to the last candidate, there shall be a column 'none of the above', to enable a voter to reject all the candidates, if he chooses so. Such a proposal was earlier made by the commission in 2001 (vide letter dated 10.12.2001)."

Representational image. AFP

Representational image. AFP

It has taken almost ten years, and a public interest litigation for that proposal of the CEC to be implemented, thanks to the landmark judgment of the Supreme Court on 27 September.

But the NOTA button demand has a longer history. Unlike the CEC proposal which is supported by a technicality of maintaining secrecy of the ballot, the demand for NOTA has come from a desire to empower the voter to reject criminal and tainted candidates. It has been called the "right to reject" button, made vocal most recently by the Anna Hazare led agitation in 2011. Hence the NOTA campaign had widespread support both from citizens' groups as well as the Election Commission.

It's not clear why the Election Commission of India did not suo moto introduce this reform. Perhaps EC officials felt they were not constitutionally empowered to do so. But in fact even when we went from ballot paper to EVMs, no legislative intervention was required. Similarly, the model code of conduct introduced in the 1990s was something the EC introduced, and has been successfully implemented. Citizens have felt that in the same spirit, the EC could have introduced the right to reject (or NOTA button) on its own.

In any case we now have the NOTA button, but some clarification is needed.

There is some confusion over Rule 49 (O) of the Representation of People Act, Very simply put, 49 (O) is the right to remain absent, not the right to reject. Voting is not mandated by law in India, so every voter has the right to remain absent. But that runs the risk of somebody fraudulently casting a vote in your name. To prevent such fraud, voters who wish to remain absent or to abstain, have to actually go to the polling booth and sign a form declaring that he will not cast a vote. This right to abstain neither delivers the secrecy that citizen exercising his franchise is promised nor is it counted in the final polling numbers.

Over the past few years, various citizens' groups and social media campaigns have sensitised people to the use of 49 (O), but many have confused this with the Right to Reject. The NOTA button is a much more proactive tool. A NOTA button is placed alongside the button for candidates who are contesting.

The logical next step is that the NOTA votes should be counted. If NOTA wins, that means the voters have rejected all other names on the ballot. Then a re-election must follow. In the fresh round, no earlier candidate can contest. In this second round the winner must get 50 percent plus one vote. Else a final "run-off" between the highest two polled candidates must decide the final winner.

This process will ensure that political parties will be under pressure to put up cleaner and more acceptable candidates. This will then truly empower the voter, and make the NOTA button the Right to Reject button. Until then it will merely remain a "Right to Abstain" button.

In our polity, the impact of the right to reject will be tremendous. Often, voters feel frustrated or helpless when they are faced with a series of candidates with dubious backgrounds, in some cases every candidate has serious crimes listed against his profile. Now, after this SC verdict, even though voting is merely a statutory right, the right to reject has been termed a constitutional one at par with freedom of expression.

Principled voters have been, until now, left with no choice faced with candidates with criminal backgrounds. But with the NOTA button, they can now register their protest.

This will also put some pressure on political parties to field better candidates. We can also hope that there will be much more attention paid to the acceptability of a candidate, the public record of a candidate in that constituency and more. Candidates parachuted from outside a constituency, running up huge election expenses, often beyond permissible limits, could be rejected.

Ajit Ranade is a founder member of the Association for Democratic Reforms.