The NOTA option is not a right to reject,but it will let disillusioned voters be heard.
The Supreme Court judgment on the long-pending demand from a section of the people for the right to reject has created a stir. But it seems that the meaning of the order has not been correctly appreciated. Most people appear to think that the right to reject has been granted. They will be disappointed to learn that their celebrations have been premature.
What are the facts,then? The Supreme Court has asserted that just as people have the right to express their preference for a candidate,they also have a right to register a negative opinion. This can be exercised through an extra button on the EVM which says none of the above or NOTA. The apex court has directed the Election Commission to introduce this button.
The order came after a writ petition filed by the Peoples Union for Civil Liberties (PUCL) in 2004,under Article 32 of the Constitution,questioned the constitutional validity of the Conduct of Election Rules 41 (2 and 3) and 49-O,as these violate the secrecy of a vote. It also requested the court to direct the EC to introduce the NOTA option on EVMs (and ballot papers). Interestingly,the EC itself had demanded the provision of this option through an amendment of the Conduct of Election Rules as early as 2001. Irked by the governments inaction,the PUCL chose to go to the apex court.
What will the effect of this innovation be? Will it mean that all the candidates in a constituency stand rejected or defeated if the number of NOTA votes exceeds the number garnered by the highest vote-getter? The answer is a clear no. Even if there are 99 NOTA votes out of a total of 100,and candidate X gets just one vote,X is the winner,having obtained the only valid vote. The rest will be treated as invalid or no votes.
The question arises that,if it does not affect the result,what is its advantage? Why was the EC demanding it in the first place? The ECs reason for demanding the option was not to institute the right to reject. It was to ensure the secrecy of the voter wanting to make a choice that amounts to abstention,and also to ensure that nobody casts a bogus vote in his place. Both these concerns have been addressed by the SC order and the EC has reason to be happy.
What happened to the demand for the right to reject? The fact is that the demand did not exist in the PUCL writ petition (as evident from the SC order). But the court has held that the high number of NOTA votes will pressure political parties to nominate only good candidates,not the dubious or tainted. In a way,a small step has been taken towards that goal.
Before the introduction of EVMs in 1998,people exercised the option of non-voting in secrecy,by simply putting a blank ballot slip into the ballot box. Some would deliberately spoil the ballot by stamping it in more than one place to make it invalid. Many just wrote sab chor hain (they are all thieves). All these amounted to invalid votes. These were counted but did not have an impact on the result.
After the introduction of EVMs,non-voting lost its secrecy,since the pressing of a button is accompanied by a loud beep,audible in the entire polling booth and even outside. No beep would mean non-voting and everyone would know. This not only violated the voters secrecy but also made him vulnerable to reprisals. The secrecy principle is integral to free and fair elections. Whether a voter decides to cast her vote or not,the secrecy of her choice has to be maintained.
Significantly,the apex court has also upheld the concept of negative voting. A voter may refrain from voting for several reasons,including the reason that he does not consider any of the candidates worthy of his vote. One of the ways of such expression may be to abstain from voting by not turning up at all,which is not an ideal option for a conscientious and responsible citizen. Thus,the only way by which it may be made effectual is by providing a button in the EVMs to express that right. This is the basic requirement if the lasting values in a healthy democracy have to be sustained,which the Election Commission has not only recognised but also asserted. The court also observed that the NOTA provision is used in several countries,such as France,Belgium ,Brazil,Chile and even Bangladesh
It is significant that the Supreme Court has gone to the extent of raising negative voting to the status of a fundamental right. Not allowing a person to cast vote negatively, it says,defeats the very freedom of expression and the right ensured in Article 21,that is,the right to liberty.
Elaborating the need for this right,it says,for democracy to survive,it is essential that the best available men should be chosen as peoples 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)… which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting. My personal feeling,though,is that expecting moral pressure to work on political parties is far too optimistic,given their stubborn refusal to debar tainted candidates from contesting,despite a public hue and cry for two decades.
The courts observation about voter participation is also very significant. It will also encourage voter participation,which signifies the the strength of the democracy,implying that coming out to exercise NOTA option is better for democracy than not turning up at all. This will give them a feeling of empowerment.
Many people have asked me about the technical changes that the EVMs would require and the time it will take. Fortunately,this is the easiest measure to implement. No modification of EVMs is required. All it means is that the NOTA will be like one more candidate,represented by the last button. There are no financial implications either. The EC,no doubt,will now introduce the button soon,without waiting for the amendment of the law.
Electoral reforms have been coming from the judiciary in the face of the governments apathy. The SC has stopped short of creating the right to reject,apparently because it was not in the petition. But it has paved the way for it. Its time for the government and Parliament to take the comprehensive electoral reforms forward,for the health of our democracy. If they dont,the current momentum will peter out.
The writer is former chief election commissioner
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