By ordering that voting machines in future should have an additional provision for voters to record a ‘none-of-the-above’ (NOTA) option to reject all candidates in the fray, the Supreme Court has ushered in a key electoral reform that has found favour in the past with the Election Commission of India and even the Law Commission. The idea of according to a negative vote the same sanctity and secrecy as a vote in favour of a particular candidate is indeed laudable in a parliamentary democracy. Advocates of electoral reforms have encouraged voters to make greater use of Rule 49-O, the provision by which one can record a ‘no-vote’ option by signing a form in the presence of election officials, in the hope that a large number of such negative votes would induce political parties to field candidates known for their integrity. The verdict holds that the rule violates election law and the voters’ freedom of expression alike by denying voters who exercise that choice the required secrecy. The Court believes that the extra provision in the voting machines would promote free and fair elections, ensure greater voter participation and reduce bogus voting.
In recent times, the Supreme Court has struck down a provision to prevent immediate disqualification of convicted legislators and, more controversially, barred those in custody from contesting elections. The NOTA ruling fills a significant lacuna in electoral law, and is a welcome addition to the series of decisions it has rendered to protect the integrity of our elections. A doubt arises as to what will happen if a very large percentage of voters go in for the no-vote option. Even a meagre turnout is considered good enough to declare a valid result now, but a heavy quantum of negative votes may affect the legitimacy of the election process. Perhaps, the EC could fix a limit beyond which the percentage of NOTA votes would entail re-polling. All this raises a question: why has Parliament left electoral reforms to the courts instead of deliberating over and passing appropriate laws? Thanks to an assertive EC, the potential for irregularities by the political class has been effectively kept under check, but this inherently adversarial relationship may have prevented the ushering in of sweeping reforms through legislation. There is no agreement on some reforms mooted by the Election Commission, such as making the framing of charges in serious criminal cases the basis for disqualification instead of conviction. Ranging from the need to check money power and paid news to the need for transparency in the funding of political parties, there are a host of issues that ought to be addressed through comprehensive legislation rather than ad hoc adjudication.