INTRODUCTION
The Indian electorate was given the option to reject all the candidates presented before them in their constituency for the first time in 2013. The Supreme Court gave us the ‘none of the above’ option, or NOTA, as it is popularly known, for this purpose, and instructed the Election Commission to provide a button for the same on the Electronic Voting Machines (EVMs). In the Supreme Court’s view, the right to reject all candidates is integral to “the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.” Elections since 2013 have seen large number of people opting for NOTA, but even in a case where NOTA gets the majority vote, it yields no significant result, given that the candidate with the largest number of votes is elected anyway. This renders the NOTA option useless. This article makes a case for the conduct of re-elections in cases where the NOTA is the majority vote.
LEGAL BACKGROUND
Earlier, when the ballot paper system of voting was followed, it was possible for a candidate to avoid voting for any candidate, as they would simply have to leave the ballot slip blank.While such a vote would be considered invalid, the voter’s right to refrain from voting for any candidate was preserved. Since the introduction of EVMs in 1998, this system developed some complications.Rule 49(O) of the Conduct of Election Rules, 1961[1] describes that if a voter, after having their name entered in the register of voters and signing, decides not to cast his vote, a remark detailing the same would have to be made by the presiding officer against the voter’s name. This meant that if a voter had to abstain from casting a vote using an EVM, he would have to inform the presiding officer to do so.
This violation of a voter’s privacy was first addressed in Kuldip Nayar v. Union of India[2], in which secrecy of ballots was said to be integral to the conduct of free and fair elections.
This view was elaborated upon in Lily Thomas v. Speaker, Lok Sabha[3], in which the Supreme Court held that voting is a “formal expression of will or opinion” by a person who has the right to this expression. The court also said that such a right includes “the right to remain neutral” as well.
The Supreme Court directed the Election Commission to include a NOTA option in the EVMs in the landmark case of People’s Union for Civil Liberties v. Union of India.[4]The primary claims of the petitioners in this case was that while the relevant provisions of the Representation of People Act, 1950[5], read with the rules[6] allow a person not to vote, the present mechanism breaches the voters fundamental right to privacy[7]. The arguments from the side of Union of India primarily questioned the jurisdiction of the court, given that the court was hearing a writ petition, but the right to vote is a statutory right and not a fundamental right. In this regard, the court stated that the right to vote has a scope that extends beyond that of any ordinary legal right. This is because the right to vote encompasses the freedom to choose the candidate, which is a specie of the right to freedom of expression. The jurisdiction of the court was clarified with this observation. On the matter of privacy, the defendants said that the concept of privacy only extends to those who have cast a vote, and not to those who have not voted in the first place. To this, the court said that the statutes give the right to secrecy of ballot to both- those who choose to vote, and those who choose to abstain. With this, the court allowed for the provision of NOTA in EVMs, and celebrated the hallowed principles enshrined in our Constitution.
EXPLORING A CASE WHERE NOTA GETS MAJORITY VOTE
Let us take a hypothetical election in some constituency X in India. Let us assume candidates from two parties, A and B, are contesting elections in this constituency. The voters therefore have three choices, to vote for the candidate from party A, the candidate from party B, or to vote NOTA. Let us imagine there are 100 eligible voters in this constituency, and that all of them go to the polls. According to our current laws, even if 99 people voted NOTA, and one person voted for- say candidate A- then A would win the seat in that constituency.
This might be a hypothetical situation, but it is easy to realise the unjustness of it. It is not that people did not care about the election or the candidates and hence stayed home. They went to the polls and cast their vote, but their lack of faith in the available candidates led them to vote NOTA. They are expressing their discontent with the system and with the political parties, which our country allows them to do and which is their right as citizens. However, the current situation surrounding NOTA would ignore the citizens’ dissent completely, and give them a representative in whom they have no faith. How is this democratic?
Ever since NOTA was introduced, we have seen it gaining in popularity. An average of 1.6% of votes for NOTA were recorded in five State Assemblies in 2016. In Telangana State in 2018, there was an increase in NOTA votes from 0.7% (in 2014) to 1%.[8] People are losing faith in the existing political parties and their current dynamics. Clearly, there is rising dissatisfaction among voters, many of whom view NOTA as a way to express their feelings. If NOTA votes are simply considered invalid, we are silencing the voice of all those who took the time to go and vote in a way that they felt best suited their views.
As a solution, many people are of the belief that in the case of NOTA getting a majority of the votes, the election should be held again. Some go even further and say that all new candidates should stand in each constituency- which makes sense if a re-election were to be held, as it would have no effect to hold a re-election in which all the candidates and constituencies were exactly the same as before. Holding a re-election would give the political parties a chance to change something about their candidates and their outlook, and would, in the long run, lead to them paying closer attention to the needs of the peopleto ensure that they do not lose to NOTA again. In short, it would lead to greater accountability.
The 170th Law Commission Report proposed the concept of a ‘negative vote’, which is effectively the same as the current ‘NOTA’ option and asserts that ‘negative votes’ be counted as regular votes. In this scenario, a candidate may not be declared as elected unless they get at least 50% of all the votes cast, including the negative votes. In the event that the negative votes secured a majority, the Report suggested a run-off election between the two candidates who secured the highest votes. If no candidate won in the run-off, fresh elections should be held for that constituency.[9] This was proposed with a view to achieving two objectives. The first was to cut down the influence of cast on politics, to ensure that there was no way that one particular cast could command more than 50% of the votes in any constituency. The second objective was to ensure that political parties put forward worthy candidates.
However, there are also many objections to taking NOTA seriously and conducting re-elections. The most common objection is that it would be a monumental cost to the government to hold elections again, even in one single constituency. Holding a re-election would also involve allowing parties time to campaign with their changed policies and their new candidates, and this would delay the entire election cycle. In 2017, the Supreme Court dismissed a PIL put forward by Supreme Court advocate Ashwini Upadhyay, demanding that re-elections be held, citing this very objection. Erstwhile CJI Dipak Misra said that there could be cases where a candidate may secure even as much as 40%, and in that case it is unfair to ‘subject the candidate to another election’ simply because they could not cross the 50% mark.
Another issue that may concern people regarding NOTA is that some believe that NOTA is not used as a form of protest so much as it is simply the option preferred by voters who are uninformed and uneducated.[10] If this were really the case, then it should be that NOTA votes are considered invalid, as these people are simply opting out of voting for a candidate simply because they lack sufficient knowledge of politics. In effect, they have simply chosen not to vote at all.
Both of these are valid considerations. It is true that the election process is very expensive in terms of both time and money, and it is not so easy to hold a re-election. In that re-election as well, NOTA might win again, and then it would become an endless cycle until a candidate finally wins. Is this worth the expense of state resources? Further, if it really is the case that most of the people who vote NOTA do so mainly because they are uninformed and uninterested, why should their votes be counted when informed and and decided voters have also cast their votes?
Let us address the second issue first. The study that was conducted was done in Nevada in the United States. It need not be the case that Indian voters are the same. Even if in some cases people only voted NOTA due to their lack of information, that need not be true of everyone who votes NOTA. After all, these are people who took the trouble of going to the polling station to cast their votes. If they were uninformed and disinterested, it would have been far easier for them to simply stay at home. People who vote NOTA likely did so because they wanted their voices heard- they wanted to make it clear that they are unhappy with the state of politics in the country. This brings us to our first objection- that holding re-elections would cost more time and money than they are worth.
Upholding the democratic integrity of our country should be our highest priority. It is imperative that the government listens to the people and pays attention to what they have to say. If the people are dissatisfied with the election system or with the political candidates, they have a right to say so, and the burden should be on the parties to improve their policies and put forward better candidates, rather than forcing the voters to choose a ‘lesser of two evils’. There should be a moral pressure on political parties to ensure that their candidates get elected through merit, and that they get at least 51% of the votes in a constituency. A failure to do so is not a failure of the voters but of the party and the candidate. It is not fair for the people to be governed and represented by someone they did not vote for. It infringes upon the basic electoral rights of the voters. Therefore, perhaps the time and money required to hold re-election would be worth it if it meant that voters get the chance to elect a candidate they truly believe in and who can secure a majority of the votes. The prospect of having to go through the election cycle again would act as a check on political parties that makes them more responsible in fielding their candidates, and would also make voters pay more attention to politics and the political scenario. On weighing the pros and cons, there is a strong argument for holding re-elections in the case of NOTA securing majority votes in a constituency, on the grounds that it would be the only solution that acts in the best interests of democracy.
CONCLUSION
NOTA or ‘none of the above’ is a useful tool that helps voters express their dissent and dissatisfaction during election time. The voice of the voters must be listened to at all times, and with this in mind it is strongly suggested that if NOTA secures a majority (51%) of the votes in a particular constituency, that elections be re-held in the constituency with different candidates from all the parties. Yes, this would cost a large amount of time and money, but in the overall interests of the voters and the democratic integrity of the country it seems the best solution. It would put a great deal of pressure on the political parties to do their best and to be their best, and to field trustworthy candidates during elections whom the voters would find more appealing.
Elections are held in order to advance the country. They are a measure of the opinions and feelings of the people in terms of the policies of the government and their stances on various issues. The interests of the voters should be utmost priority. NOTA’s very existence is a progressive step towards giving the voters a better platform to express their views, but there is no point to having the option of voting NOTA if there is no effect for it. Therefore, re-elections must be held, in the interest of better accountability and to improve the election process as a whole.
Reference
[1] Govt. of India, Ministry of Law and Justice, S.O. 859 (April 15, 1961).
[2] (2006) 7 SCC 1.
[3] (1993) 4 SCC 234.
[4] WP (Crl.) NO. 199 of 2013.
[5] The Representation of Peoples Act, 1951 (Act 43 of 1951) ss. 79(d), 128.
[6] supra note 2 at 2.
[7] The Constitution of India, art. 19(1)(a).
[8] ET Contributers, Why NOTA May Be An Emerging Trend In the Lok Sabha Elections, ECONOMIC TIMES (April 11, 2019) https://economictimes.indiatimes.com/news/elections/lok-sabha/india/view-why-nota-may-be-an-emerging-trend-in-the-lok-sabha-elections/articleshow/68827711.cms?from=mdr (29th April, 2019).
[9] Law Commission of India, 170th Law Commission Report.
[10] David F Damore, Mallory Waters, Shaun Bowler, “Unhappy, Uninformed, or Uninterested? Understanding ‘None of the Above’ Voting”,Volume 65, Political Quarterly Research, pg 895-207 (2012).
