The principle of “None of the Above” is that whereas the government should secure the consent of the governed, at the same time legitimate consent requires the ability to withhold consent. It is also recognised that the provision of “None of the Above” in election law will enable and encourage voters to participate in greater number at election time, and thus indirectly assist in the same process as is sought to be effectuated by providing for compulsory voting.
In fact, the Supreme Court in 1993 affirmed that “voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question” and that the “Right to vote means right to exercise the right in favour of or against motion or resolution. Such a right implies the right to remain neutral as well.”
Thus, it is incumbent on the Central government to provide an effective mechanism for negative voting. As a matter of fact, such a provision exists under the rules framed by the Central government since long, though hardly anyone, including the presiding officer, acts on it.
Thus, under Rule 49(o) of the Conduct of Election Rules 1961, a voter has to inform the presiding officer of his intention not to vote — the presiding officer makes an entry in the remark column in Form 17 and the voter has to sign the form which is also to be countersigned by the presiding officer. This right was hardly exercised because it was then ballot voting, and in this process the secrecy of voting could not be maintained; polling agents and other officers would know about it. The majority of voters do not wish openly to get into conflict with political parties, especially their goons, and, therefore, per force, they voted for what they thought was the least undesirable.
But when we switched over to the present system of using the electronic voting machine (EVM), it became easier to provide a mechanism in a manner that the secrecy of voting was not violated by just providing one more slot in the voting machine as “None of the Above”. The Election Commission commendably has been writing to the Central government (which alone can amend the rule and provide for this method) since 2001. But, regrettably, there has been deafening silence from different political parties and governments. Now the provocative and undemocratic stand of the Central government is that even if the present rule violates secrecy, it does not matter because secrecy, though desirable, is not inviolate and hence there is no reason to amend the rules. This stand of the Central government flies in the face of the International Civil and Political Covenant Rights and which has been ratified by India — that the secrecy of voting at an election is part of the human rights guaranteed to each citizen in a country which calls itself democratic.
Though the right to negative voting is provided in the election law, it cannot be effectuated unless the rules are amended by the Central government. Not doing so, in fact, goes against the mandate of the Parliament’s Act — a serious breach of constitutional obligation on the part of the executive — hardly a commendable action.
It is not as if it is a radical untested suggestion. Negative voting is already prevalent in Ukraine and Russia, which have only recently adopted democratic elections. It has been in existence for a long time in many of the states in the US since the nineties.
In some states of the US it is provided that “if None of the Above” receives the most notes, then no one is elected and a byelection with new candidates is to be held within 60 days. Imagine what pressure it will put on the parties to avoid nominating candidates with a criminal background which in our current elections reaches the minimum of 25 per cent and across all the political parties.
Such a pressure on the political parties may compel them to democratise their method of selecting candidates as against the present one of cabal selecting their own progeny, nephews, nieces and underlings — even if the disgusted voter is annoyed he or she cannot prevent any such nominee to be elected. But if negative voting was there it would give a choice to the voters to loudly say “None of the Above”, resulting in a fresh ballot This would be a step in the right direction of further democratising the elections and give the “small man with a pencil (a phrase used by Winston Churchill and emphasised by Krishna Iyer J. in the time of ballot voting) — but now the little man with a small finger with the power to press the None of the Above” (NOTA) button on the election machine and make democracy more participatory.
One hopes this competitive politics generated at the local-level election in Gujarat will provoke the Central government (which alone is the competent authority to amend the rules) to provide for Nota as requested by the Election Commission. But the Opposition cannot sit idle and blame the Central government. If the BJP wants to take credit for a negative voting provision in Gujarat, it should publicly announce its support for an amendment to the rules to provide for negative voting at the state and central levels which will inevitably put pressure on the Central government to do so.
The writer is a former Chief Justice of the Delhi High Court.
Source: The Tribune, Chandigarh, India.
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