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Report No. 255

Chapter XI

NOTA and the Right to Reject

A. History and Context Leading Up to the Supreme Court's Decision in the NOTA Case

11.1. The proposal to introduce negative voting to reject all the candidates if voters found them unsuitable was first discussed by the Law Commission in its 170th Report in 1999, as part of its "alternative method of election" where candidates would only be declared elected if they obtained 50%+1 of all the valid votes cast. Although agreeable with the 50%+1 idea, on which negative voting was predicated,496 the Commission citing practical difficulties did not issue any final recommendations on the topic of negative voting.

496. "The requirement of 50%+1 of the vote can be implemented without implementing the idea of negative vote simultaneously, though the idea of negative vote, as explained in the working paper, cannot be implemented without implementing the idea of 50%+1 vote." LCI, 170th Report, supra note 108, at para 9.29

11.2. The ECI supported the similar introduction of a negative vote, first in 2001, under James Lyngdoh as the CEC, and then in 2004 under T.S. Krishnamurthy, in its proposed electoral reforms report. The ECI was concerned that the introduction of EVMs and the implementation of Rule 49O of the Election Rules had made it impossible to protect the secrecy of voting for those who wanted to abstain.

Consequently, they proposed a legislative amendment to Rules 22 and 49B of the Election Rules to introduce "NOTA" as an option.497 The Background Paper on Electoral Reforms prepared by the Legislative Department of the Law Ministry in 2010 also favoured the introduction of negative voting, unlike the NCRWC that found it either "impracticable or unnecessary."498

497. ECI 2004 Reforms, supra note 203, at 9; ECI Important Electoral Reforms Proposed by the ECI,
<http://eci.nic.in/eci_main/electoral_ref.pdf>, at 4

498. Background paper, supra note 230, at para 4.3 NCRWC Report, supra note 13, at para 4.7.2

11.3. Given the inaction on the government's part, the People's Union for Civil Liberties filed a PIL on this issue in 2004. In 2013 thereafter, the Supreme Court struck down Rules 41(2) &(3) and 49O of the Election Rules as being ultra vires section 128 of the RPA and Article 19(1)(a) of the Constitution to the extent they violated the secrecy of voting.

The Court in People's Union of Civil Liberties v. Union of India, (2013) 10 SCC 1, [34] observed "Therefore, secrecy is an essential feature of the "free and fair elections" and Rule 49-O undoubtedly violates that requirement" Citing section 128, RPA and Rules 39(1), 41, 49M and 49O of the Election Rules, the Court noted that the "secrecy of casting vote is duly recognised and is necessary for strengthening democracy" to maintain the purity of elections. PUCL v. Union of India, (2013) 10 SCC 1, [26].

The Court relied on its previous decisions in Kuldip Nayar v. Union of India, (2006) 7 SCC 1 and S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, (1980) Supp SCC 53. Consequently, given that the right to vote and the right not to vote had been statutorily recognised, the Court held that secrecy had to be maintained regardless of whether voters decide to cast or not cast their votes.

The Court also relied on international principles governing the right to secrecy as an integral part of voting and free elections under Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the ICCPR. It therefore ruled that voters should have the option of rejecting all candidates who were standing for elections in their constituency and directed the ECI to include the option of NOTA in all Electronic Voting Machines.

11.4. The premise of the Supreme Court's decision was that secrecy of voting is crucial to maintain the purity of the electoral system. Consequently, introducing NOTA, by guaranteeing the secrecy in casting a negative or neutral vote, would increase public participation in the electoral process, which is fundamental to the "strength of democracy." Given that democracy is "all about choice" and voting constitutes its very "essence", nonparticipation in the election can cause "frustration and disinterest".

Thus, the apex Court opined that NOTA would empower the people, thereby accelerating effective political participation, since people could abstain and register their discontent (with the low quality of candidates) without fear of reprisal; simultaneously, it would foster the purity of the election process by eventually compelling parties to field better candidates, thereby improving the current situation.

11.5. However, as former CEC, S.Y. Qureshi points out, NOTA is not the same as the right to reject. He gives an example where even if there are 99 votes cast in favour of NOTA, out of a total 100, the candidate who got only vote will be declared the winner, for having obtained the most number of valid votes.501 The ECI issued a similar clarification that no re-elections will be called based on a cumulative reading of Rule 64(a) of the Election Rules and sections 53(2) and 65, RPA.502

This is because the stated reason for ECI's demanding the introduction of NOTA was apparently to ensure the secrecy to the voter casting a negative vote and to prevent a bogus vote in their place; the right to reject did not figure in their original demands.503 This is evident in the Court's judgmen.- in terms of its emphasis on secrecy described above and the lack of any discussion on the right to reject, which was not prayed for by PUCL. Instead, the Court focused on how it hoped that NOTA would eventually pressurise parties to field sound candidates.

501. S.Y. Qureshi, Pressure of a Button, Indian Express, 3rd October 2013,
<http://archive.indianexpress.com/news/pressure-of-a-button/1177434/>

502. ECI, Supreme Court's judgment for "None of the Above" option on EVM- clarification, No. ECI/PN/48/2013 dated 28.10.2013,
<http://eci.nic.in/eci_main1/current/PN_28102013.pdf>

503. See letter of ECI dated 10th December 2001 to the Secretary, Minister of Law and Justice; Qureshi, supra note 501

11.6. While some such as Mr. KK Venugopal and ADR supported the introduction of NOTA and pushed for extending it to include the right to reject, others such as Mr. Rajeev Dhavan, Mr. SY Qureshi, and Former Secretary-General of the Lok Sabha, Subhash Kashyap believed that the Court was too optimistic in thinking that NOTA would lead to cleaner politics.504 In any event, in the 2014 Lok Sabha Elections, 1.1% of the total votes polled, or just less than 60 lakh votes were cast in favour of NOTA, although NOTA was not the most favoured option in any constituency.505

504. Manjari Katju, The 'None of the Above' Option, 48(42) Economic and Political Weekly 10, 12 (2013)

505. Bharti Jain, "Election Results: NOTA Garners 1.1% of the Country's Vote Share", TIMES OF INDIA, 17th May 2014,
<http://timesofindia.indiatimes.com/news/Election-results-NOTAgarners-1-1-of-countrys-total-vote-share/articleshow/35222378.cms>;
Election Results 2014: Close to 60 Lakh Voters Chose 'None of The Above' This Time", NDTV, 17th May 2014,
<http://www.ndtv.com/elections/article/election-2014/election-results-2014-close-to-60-lakhvoters-chose-none-of-the-above-this-time-525984>



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