Right to Reject: What the government, EC must do now

By Jagdeep S. Chhokar The Supreme Court judgment " target="_blank">judgment of September 27, 2013 in the PIL filed by the People’s Union of Civil Liberties (PUCL), {WP (C) No. 161 of 2004},which has quickly come to be known as the NOTA judgment, has added to the ongoing discourse on electoral and political reforms currently on in the country. [caption id=“attachment_114028” align=“alignleft” width=“380”]  Making the will of the people known. PTI[/caption] The petitioners had requested the court to declare Rules 41(2) & (3) and 49-O of the Rules ultra vires and unconstitutional and also prayed for a direction to the Election Commission of India to provide necessary provision in the ballot papers as well as in the electronic voting machines for the protection of the right to not vote, in order to keep the exercise of this right a secret under the existing Representation of People Act. In simple terms, it means that a voter should have the right to say that s/he does not wish to vote for any of the contesting candidates, and the fact that the particular voter has made this seemingly negative choice of “rejecting” all available candidates should remain secret. The existing provisions under Rules 41(2), 41(3), and 49-O were not able to maintain secrecy of such a vote. After considering all the arguments put forth by both sides which were led by PUCL on the one hand and the Union of India on the other, a three-judge bench of the Supreme Court directed “the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called “None of the Above” (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy - to implement the same either in a phased manner or at a time with the assistance of the Government of India.” It also directed “the Government of India to provide necessary help for implementation of the above direction.” It further directed “the Election Commission to undertake awareness programmes to educate the masses.” As is usual, the Supreme Court has provided detailed reasoning for arriving at its decision, which the bench has summarized in the final section titled “Conclusions”. Some extracts give an insight into the thinking of the court. “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. 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.” (Para 51). “Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people” (Para 53). “Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an 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” (Para 55). “The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy” (Para 58). The road ahead The judgment is very good in and of itself but its implementation is still left, which the court has said has to be done by the Election Commission “with the assistance” of the Government of India. To adapt a well-known saying, “the devil is in the implementation”, and the governmental system is very adept at manipulating the details and nitty-gritties of implementation with an occasional, and successful, attempt at thwarting the original intention. The implementation, therefore, has to be in letter and spirit. What exactly needs to be done? Having a NOTA or “None Of The Above” button on the EVM will certainly protect the secrecy of choice made by those who decide to not vote for any of the candidates on offer but this button is capable of giving us much more than merely protecting the secrecy of the voter who uses it. It can go a long way in improving the quality of representation. This issue has been discussed in detail by the Law Commission of India as far back as May 1999 in their 170th report titled Reform of the Electoral Laws. Some of the follow up actions that need to be taken are the following: 1. Votes cast for the NOTA button should be counted. 2. In case the NOTA button 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. 3. In the following elections, with fresh candidates and with a NOTA button, only that candidate should be declared elected who gets at least 50%+1 of the votes cast. 4. 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%+1 of the votes cast, then there should be a run-off election between the two top candidates. A more detailed discussion of this and related issues can be seen here. This may, at first glance, appear to be a cumbersome and tedious process but the Law Commission had actually thought about this even in 1999. It said: “If the above practical difficulties and problems can be overcome, the idea of 50%+1 vote - and even the idea of negative vote - can be implemented. We may mention that if electronic voting machines are introduced throughout the country, it will become a lot easier to hold a run-off election inasmuch as it would then be not necessary to print fresh ballot papers showing the names of the two candidates competing in the run-off - or for that matter, for holding a fresh election (in case the idea of negative vote is also given effect to)” (Para 8.7). We have now been working with EVMs for a long time and therefore implementing the holding of a fresh election, as envisaged by the Law Commission, is actually “a lot easier” than it would have been in 1999. The above actions are therefore essential as part of the implementation of this judgment if we are to get full advantage of the decision. This will require amendment of the Conduct of Election Rules, 1961, which the Government of India can do by itself. Perhaps this is what the Supreme Court was hinting at when it directed “the Government of India to provide necessary help for implementation of the above direction.” It is quite clear that taking the above steps is the only way that the hopes of the Supreme Court that making a provision of a NOTA button will “foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people,” and this button will cause “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.” Here’s hoping that the Election Commission and the Government will not spare any effort at realizing the hopes expressed by the Supreme Court and start the long awaited process of improving the electoral system in the country. Jagdeep Chhokar, a former professor, dean and director-in-charge of the Indian Institute of Management, Ahmedabad, now lives and works in New Delhi.