Context: The Supreme Court asked the Centre and the Election Commission of India to respond to a plea that fresh elections should be conducted in constituencies where the highest number of votes polled are NOTA (None Of The Above).The petition said candidates ‘rejected’ by voters should not be fielded again in the fresh polls. During the hearing, Chief Justice of India Sharad A. Bobde expressed doubts initially about the feasibility of the petition by advocate Ashwini Kumar Upadhyay to arm the electorate with the “right to reject” and nudge political parties to present voters with a better choice of candidates to pick from.
- Chief Justice Bobde said if voters kept rejecting candidates, Parliament/Assembly seats would continue to remain vacant, affecting legislative functioning.
- Petitioner said that “if voters are given the power to reject, political parties will take care to field worthy candidates in the first place…”
What is ‘Right to Reject’? How is it part of the fundamental right of freedom of speech?
- 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.
- The system of negative voting exists in several other countries.
- Even in Parliament, the MPs have the option to abstain during a vote.
- Right to reject implies that a voter while voting has every right not to opt for any of the candidates during an election.
- Right to reject has its genus in the Fundamental Right to Freedom of Speech and Expression.
Is ‘Right to secrecy’ while voting a fundamental right?
- Right to secrecy is an integral part of a free and fair election.
- It is a central right of an elector to cast his vote without fear of reprisal, duress or coercion as per Article 21 of the Indian Constitution.
- Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14, Article 19(1)(a) and Article 21 of the Indian Constitution.
Is ‘Right to secrecy’ recognized under international laws?
- Right to secrecy has been internationally recognized. Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights deals with the “Right to secrecy”.
What is NOTA?
- This was introduced to give voters a right to reject the candidates put up by the political parties.
- Electronic voting machines (EVM) in India have the ‘None Of The Above’ (NOTA) button at the bottom of the list of candidates.
- None of the Above (NOTA) option also has a symbol to facilitate the voter to exercise the NOTA option.
- A candidate belonging to a particular political party fights on the party’s symbol.
- An independent candidate fights on the symbol allotted to him by the Election Commission of India.
- The NOTA option is meant only for universal adult suffrage and direct elections.
- The option is available to the public only during Lok Sabha, State Assembly and Panchayat and Municipal body elections.
- Implementing the Supreme Court order, the Election Commission of India (ECI) withdrew the provision of None Of The Above (NOTA) from elections to Rajya Sabha and Legislative Council in states.
How is a NOTA vote cast?
- The EVMs have the NOTA option at the end of the candidates’ list.
- Earlier, in order to cast a negative ballot, a voter had to inform the presiding officer at the polling booth.
- A NOTA vote doesn’t require the involvement of the presiding officer.
When was NOTA first used in India?
- The EC, on the directions of the SC, introduced the NOTA option for the first time in the 2013 Assembly elections of Chhattisgarh, Mizoram, Rajasthan, Delhi and Madhya Pradesh.
- In 2013, India became the 14th country to institute negative voting through NOTA.
- In 2014, the EC introduced the option in the Rajya Sabha and Lok Sabha elections.
There was a similar provision before NOTA. What was it?
- The voters had the right of choosing none of the contesting candidates earlier as well. But before introduction of NOTA, a voter had to inform the polling officer of her decision, as per Rule 49 O of the Representation of People’s Act. The polling officer would then record her vote in Form 17 and take the signature or thumb impression of the voter.
- This provision went against the basic principle of secret voting as practiced in India, according to Section 128 of the Representation of People’s Act. The voter’s choice of not voting for any of the candidates could not be kept secret as the ballot paper bearing her name and signature would be enumerated along with counting of other votes. NOTA restored secret ballot in election.
How are 49(O) and NOTA (Right to Reject) different?
- The Section 49 (O) stood annulled after the SC cleared the NOTA provision.
- It gave the poll officials a chance to find out the reason behind the rejection of a candidate through the voter’s remarks in Form 17A.
- Through NOTA, the officials cannot find out the reason for the rejection.
- Moreover, it protects the identity of a voter, thus keeping the concept of secret balloting intact.
What difference does NOTA make?
- The NOTA option cannot impact the results of the elections.
- The NOTA option on EVMs has no electoral value.
- Even if the maximum number of votes cast is for NOTA, the candidate getting the most of the remaining votes would be declared winner.
- NOTA votes are treated as invalid or no votes.
- It is not a negative vote, but a neutral one that records a voter’s rejection of candidates.
- NOTA in India is a toothless option; “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’.”
- Certainly, NOTA provides democratic means to express resentment anonymously rather than boycotting the polls outright.
- The share of NOTA votes in India remained around a meagre level of 1% on an average; 1.11% in the 2014 Lok Sabha, and 1.08% in 2019, if we consider constituency-wise averages.
- In the recent past, State Election Commissions in Maharashtra and Haryana ruled that fresh polls would be held if more votes were cast for NOTA. But this was restricted to municipal and panchayat elections and it’s not clear if this would stand up to legal scrutiny.
How ‘NOTA’ (Right to reject) button on the EVMs is important in a democracy?
- Voter’s participation is an essence of democracy. Introducing a NOTA button can increase the public participation in an electoral process. The voters’ participation in the election is indeed the participation in the democracy itself.
- NOTA 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.
- 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. 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.
- Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate thinks about them.
Red Alert Constituencies
- These are those which have 3 or more candidates with criminal cases contesting elections.