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Updated: October 9, 2013 02:38 IST

NOTA small matter, this

N. Gopalaswami
Comment (35)   ·   print   ·   T  T  

The Supreme Court’s recognition of a negative vote as a constitutional right should be followed by acknowledging it as a rejection of all candidates

The recent NOTA (none of the above) order of the Supreme Court makes for a hat trick of decisions by the judiciary, striking a blow for electoral reforms. The attempt to reverse one of them — to save MPs found guilty of offences that would instantaneously unseat them — was thwarted because of public pressure and the President’s reported reluctance to sign the Representation of the People (Amendment and Validation) Ordinance. It is said that nature abhors vacuum. In the face of the government’s reluctance to move ahead in bringing meaningful electoral reforms, the courts have had to intervene wherever they could to give some push to the reforms and to restore the public’s faith in the system.

Government’s failure

The NOTA case is a classic example of the government’s failure to do the right thing at the right time. The Election Commission of India (ECI) moved the Law Ministry in 2001 for an amendment to the rules to provide for a button in electronic voting machines in order to protect the identity and secrecy of a voter who does not want to vote for any candidate. That was the equivalent of the unmarked ballot paper of the earlier era. The ECI received no response to the proposal for amending the said rule, although the Minister in charge needed neither the Union Cabinet’s nod nor Parliament’s assent. In 2004, the then Chief Election Commissioner, T.S. Krishnamurthy, reiterated the proposal after christening the button as ‘none of the above’ but, for the first time, clearly articulating that it was to “to enable a voter to reject all the candidates, if he chooses so.” By then, the PUCL had already moved the Supreme Court in the matter. The case came up for hearing in 2009 but in the intervening years the protagonists for the ‘no vote’ button had raised the pitch claiming for it the attribute of ‘rejection’ of candidates which it is not, at least not yet. Presently, it will only enable a voter not to vote in favour of any candidate. So the votes recorded against this button will have the same fate as the ‘invalid’ votes of the ballot paper era and would have no role in determining the winner. With EVMs, the ‘invalid vote’ category got eliminated as mistakes like wrong marking and multiple marking became a thing of the past. Now, with this button that column will come back to life.

If that be so, is it not a minor matter, a storm in a tea cup? To answer it, one should look closely at some pronouncements of the Supreme Court in this case. It is worthwhile to note that by the time the matter came up in the Supreme Court in 2009, the government had understood the potential of this button to create a ‘negative’ impact in the short run, leading to the demand for a right to reject candidates and seek fresh elections.

The government, therefore, reacted strongly — it sought to get the petition dismissed outright arguing that since the right to vote was not a constitutional right but only a statutory right, the petition filed under Article 32 was not maintainable and so should be thrown out. This led to further delay in the disposal of the petition as it awaited the constitution of a larger bench. The Supreme Court verdict has arrived almost a decade after the petition was filed, in favour of the NOTA button but with far-reaching consequences.

Wider choice for voters

The reactions to this order have been varied. Some have chosen to describe it “as a minor issue,” pointing out to the lack of action to carry out comprehensive electoral reforms. Some have welcomed it as it may increase voter turnout, an aspect which the Supreme Court judges also pointed out. Some have felt that it will make parties more responsible, which will nominate better candidates. The judges themselves pointed out that it can widen participation and curb impersonation. A careful reading of the judgment indicates that the judges strove to make this happen through some deft side-stepping and innovative interpretation of past judgments of the Supreme Court and provisions of the Constitution, on the nature of the right to vote, with the sole objective of giving the voter a wider choice.

To quote from the verdict: “Democracy is about choice. This choice can be better expressed by giving the voters an opportunity to verbalise themselves unreservedly and by imposing least restrictions on their ability to make such a choice.” The Supreme Court was emphatic that the no vote option “gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties.” Going further, the judges declared that the “provision of negative voting would be in the interests of promoting democracy.”

This seemingly innocuous judgment to add a button to the EVM may sound very plebian but the skilfully worded order has put a seal of approval on the distinction made between the right to vote, which it confirmed was a statutory right, and the act of exercising that right by the casting of a vote which it confirmed as a constitutional right as enshrined in Article 19(1)(a), the right to freedom of speech and expression. It then a added a constitutional lustre to ‘negative voting’ by declaring “not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21, i.e., the right to liberty.”

The Supreme Court’s recognition of “negative voting” as a constitutional right is by all means a giant step forward for the voter. Civil society has thus won an important and vital point. From here the next logical step will be one of raising the status of the button to that of “negative vote” with consequences, in other words a vote for ‘rejection’ of all candidates, instead of its current status of merely being “no vote or negative vote.” This step would inevitably have to follow if political parties do not see the writing on the wall and belie the expectation that NOTA “will indeed compel the political parties to nominate a sound candidate,” as the Supreme Court said.

If parties keep imposing tainted candidates on voters or, while selecting candidates, pay scant regard to their performance or integrity, the electorate can hit back with NOTA. A time will come with demands for fresh election with a fresh set of candidates if, in the first election, NOTA scores the highest votes. If that happens, even if the lawmakers are reluctant, the Supreme Court may not be unsympathetic given the contours of this judgment. With 12 crore first time voters who will have NOTA before them in the coming election to Parliament, the stage is set for the electorate to challenge political parties’ commitment to decriminalising the legislative bodies. A comprehensive electoral reform is the need of the hour but if the political class keeps dragging its feet, courts may be willing to clean the Augean stables. For their part, those who moved the Supreme Court in this matter and other civil society organisations would do well to educate voters of the power the court has placed in their hands and let the button beep louder and speak for them. NOTA will not remain a small matter for long.

(The writer is former Chief Election Commissioner of India)

More In: Lead | Opinion

An insightful article on the new provision. I'm in unison with the
author's opinion about the need of it being getting acknowledged as a
rejection of all candidates. Apex court should consider promulgating
"Right to Reject" (RTR), for which Arvind Kejriwal's Aam Admi party is campaigning.
NOTA I feel is a provision for legal disenfranchisement of a duly
registered voter, to have his vote disregarded. So all should exercise
their franchise judiciously and make sure that they don't skip the race.

from:  MITHUN H N
Posted on: Oct 10, 2013 at 18:59 IST

An unintended consequence will be many non serious candidate will be forced to loose security deposit & small parties may be forced to loose recognition as all india party or even as regional party.

from:  K.SRINIVASAN
Posted on: Oct 10, 2013 at 17:18 IST

it is a good move to elecct good leaders
it will be some effect on some leaders who involve in scams

from:  suman
Posted on: Oct 10, 2013 at 16:03 IST

The SC judgement is partial in spirit and nature. Definitely it provides wider choices.
What will happen, if more number of people opt for "negative vote". In democracy
rulers are elected by the ruled , but not rejected. So please do look at other face of the
coin.

from:  Deepak A.E
Posted on: Oct 10, 2013 at 13:28 IST

As the article rightfully pointed that NOTA to work effectively, the parties should feel the pressure to put competitive candidates to voters. And the political parties have always find ways to deflate the pressure. So we need to establish a standard measurement tool to rate the performance of the candidates. As we need experienced experts to lead us, we also need voter bank which is able to judge these candidates, question their genuineness and predict how the candidates will behave if power is given to them. This will keep the pressure on candidates to be competitive. And these information should overcome the language barriers.

from:  marudah
Posted on: Oct 10, 2013 at 07:37 IST

NOTA is a great move by the SC, but as of now it does not affects the final result of a poll because the candidate secures maximum votes in the list will be declared won, irrespective to the number of times NOTA option chosen. So people who do not want to vote will remain in their homes, and if some people move to polling booth to choose NOTA, 90 per cent of them will finally not going to press NOTA button due to above reason, and then again people goes to the best amongst the worst available in the list.

from:  Umesh Bhardwaj
Posted on: Oct 10, 2013 at 00:27 IST

I am afraid that all our politicians will join again to nullify this
powerful NOTA, as they did for escaping the perview of RTI act,
continuing their influence on voters using freebies and preventing
disqualification of convicted MPs and MLAs. Citizens of India should be
vigilant and united to retain this powerful tool with themselves to save
democracy.

from:  A V RAMANATHAN
Posted on: Oct 10, 2013 at 00:18 IST

Even though the Hon'ble Supreme Court's verdict appears to be strengthening democracy, I am afraid, this is going to be counter-productive for two reasons. One, it undermines the electoral objective of electing a candidate (election is about selection and not rejection in toto). Two, the section of population that dislikes electoral politics may turn-up in large numbers to demonstrate their contempt for politics and politicians and defeat the mega-exercise of electing representatives to run the system however imperfect it may be. After all a nation remains to be governed. I believe that the reform should have been about ranking of the candidates rather than rejecting all of them summarily.

from:  Sudhir Kumar A.G
Posted on: Oct 9, 2013 at 23:32 IST

Once again a historical move by our SC.Now the ball lies in EC's court
to work out the technicalities of implementing it.There should be a
method like our quota system in Presidential and Vice Presidential
election system.If NOTA votes crosses this quota then all the
contestant in the fray are automatically disqualified and dates for new
elections should be notified and parties should come out with a new
contestant.Even though it sounds uneconomical it has to be adopted
because if we think of the corrupt politicians who are looting peoples
money crores together,just spending a little bit of money to conduct
new election to elect an contestant who is honest,good leadership
skills, statesman..amounts to saving crores of money.
Now a days people enter politics only to make money,it has now become a
business kind of mindset in our Nethas.With this supreme court verdict
and EC taking all the necessary steps,hope so this mindset gets
vanished away and our political class getsdecriminalised

from:  Arjun c p
Posted on: Oct 9, 2013 at 20:46 IST

A great decision. Now voters will select right candidate.

from:  Gano
Posted on: Oct 9, 2013 at 19:04 IST

How is the NOTA vote to be interpreted, ie what impact will it have on
election result? If NOTA count exceeds maximum vote cast for any
candidate what will it mean? Will it trigger fresh election?
Or is NOTA simply a "protest" vote, equal to spoiling ballot paper, with no impact on voting outcome?

from:  D Mahapatra
Posted on: Oct 9, 2013 at 18:51 IST

If "none of the above" out number the highest votes of a candidate atleast the party will be forced to keep him out of ministers and other potfilios, as other candidate who have greater public support will abject.

from:  Sreenivasa Prasanna
Posted on: Oct 9, 2013 at 18:20 IST

The Supreme court said rightly that exercising the statutory right is actually part of Fundamental right under Article 19 of the right to freedom of speech and expression.In this regard the civil society made a huge success. But this success is only seccess in the democracy when it serves it purpose and the civil soceity has a greater responsibily now " Educating the people on this front" to make it really success.

from:  Durga Rao
Posted on: Oct 9, 2013 at 17:49 IST

Many talk about making voting compulsary. NOTA is a step step in that process beacause without NOTA compulsary voting will be a violation of fundamental rights. We should not force a person to vote to he/she do not like any of the candidate. But now government can think about making voting compulsary.

from:  Manish Richhariya
Posted on: Oct 9, 2013 at 14:28 IST

Nice article. But NOTA needs to be combined with compulsory voting too.

from:  Lakshminarasimhan
Posted on: Oct 9, 2013 at 13:59 IST

The judgement should be welcomed for it brings a reform which makes the
political parties field good candidates. I hope our govt does not bring
in any law or ordinance that overrules this decision.

from:  ajay bidari
Posted on: Oct 9, 2013 at 13:49 IST

The election has now turned into a multiple choice examination with the
arrival of NOTA. I think it will encourage many people to arrive at the
polling booths. Those people who don't want to vote for any of the
available contestants can vote for NOTA, the newly born candidate. And
finally if the NOTA wins, fresh elections with new candidates might be
called for. I also believe that with the arrival of NOTA, the phrase
DEMOCRATIC INDIA becomes more meaningful.

from:  Rahul S Thirumunp
Posted on: Oct 9, 2013 at 12:57 IST

Negative vote intend that candidature unequipped, doesn't mean that void
but people of this country will make sure that right candidate in the
right place. NOTA is being absolutely ameliorate choice of voters which
will succor to increase the voting percentage. It should have been
molded earlier but didn't aftermath indulge the corrupted politician in
seated.

from:  Subeesh Kumar S
Posted on: Oct 9, 2013 at 12:44 IST

The Hon'ble Supreme Court did the right thing by ordering installation
of NOTA button on EVMs. So far political parties have been making
Indian democracy a mockery and they were free to impose rapists,
criminals and looters on electorates who in turn had no option but to
press button against name of any of the candidates. But now after
introduction of NOTA, voters will have the freedom and choice to express
their displeasure and reject all anti-socials from electoral politics.

from:  MKN Kurup
Posted on: Oct 9, 2013 at 12:25 IST

Mr.Gopala swamy should clarify whether it is prudent to have a common NOTA button to reject the candidates en masse or a rejection button in front of each candidate,so that the negative votes cast can be deducted from the votes polled by him by effectively cutting down his chances to win.Is there any provision to do so?It is in the interest of the public.

from:  K.Sugavanam
Posted on: Oct 9, 2013 at 12:13 IST

Thank you for the lucid explanation of the SC Verdict.
Not only has the average Indian Citizen surrendered his "right" to vote under the overwhelming political criminal mentality, but as a fall out, the Indian Citizen has been forced to compromise his other "Rights" also. Right to Product Quality, Right to Harmonious Living, Right to Discipline, Right to be Protected, Right to Equality, Right to Good Health, Right to get Unadulterated Food, all guaranteed to him by the Constitution.
The very people who were elected by the Indian Citizen by exercising their "Right to Vote" became hostages of their own "Right" because the political systems made the politicians "above the law".
The SC is the only recourse. It is heartening to note that people who know the law, care and want to make a difference to the lives of the Indian Citizen. The rights guaranteed by the Constitution snatched away unceremoniously by the politicians must be reclaimed. This is the noblest service of the SC.

from:  Satish Malladi
Posted on: Oct 9, 2013 at 11:33 IST

If the NOTA is the winner then reelection should be the only outcome and
in such re-election, the rejected candidates should be debarred to
contest. Anything else like treating the NOTA as invalid would be
against the spirit of the Apex Court order.

from:  c.k.saseendran
Posted on: Oct 9, 2013 at 11:24 IST

Absolutely agree with the writer that the intervention by court should
be carried forward to it's logical conclusion. As politics practised by
all parties in India doesn't believe in ethics & propriety for
candidates imposed by them, the common man should be given the right to
exhibit their anguish in a democratic way. Going forward those having
ambitions of political career will know what are the rules of the game
and that they are only servants of their true master- Public.

from:  Rithwij
Posted on: Oct 9, 2013 at 10:41 IST

The argument that even where a majority of voters express their political choice through NOTA the results will only be determined on the basis of the so-called "positive votes" in favour of candidates is both fallacious a well as mischievous. The Supreme Court has categorically declared even a negative vote to be a definite expression of political choice which is as much sacrosanct for free & fair elections in a democracy as a "favour vote" and deserve an equal "right to secrecy". Ignoring this material and categorical choice of voters would militate against the spirit of the apex court judgment.
Depriving NOTA votes any substantial meaning for election results on
the mere pretext that the court judgment does not lay down any
procedure for the aftermath of an election permitting NOTA option is
farcical. The court verdict on the sanctity and preciousness of NOTA is
very clear. It is now for the Parliament to make it meaningful and
vibrant.

from:  D.K.Bhatt
Posted on: Oct 9, 2013 at 10:30 IST

It is a big solace to have a sympathetic SC but it is also a scathing
comment on the blatant inaction of the executive regarding its sincerity
in cleaning up the political space. I hope the executive will not as
usual charge the SC with encroaching upon its decision-making space.
People will have to be ever vigilant to protect these hard-earned
rights.

from:  Raj N
Posted on: Oct 9, 2013 at 09:03 IST

It is a recognition of the right of the voters. Well, if the votes
cast "none of the above" out number the highest votes a candidate
secures what would be the result? I opine a new election there.





from:  Nagaraj.b
Posted on: Oct 9, 2013 at 08:43 IST

Thanks to the writer and the Hindu. This article possesses strength for
voters enlightening with hope of maintaining democracy against
politicians' dereliction.

from:  Sanjay basumatary
Posted on: Oct 9, 2013 at 08:39 IST

Basically to call it a negative vote is a misnomer. It is the right of
any citizen to cast a vote. Can we call it a negative vote against
others when a voter casts his vote to a candidate? Similarly "none of
the above" should be considered as another candidate representing the
law and the welfare of the people. By calling it a negative vote let us
not bring negative thoughts among people paving the way for the
opponents to do away with it. Unfortunately the world falls for
rhetoric.

from:  s.y. Ramakrishnan
Posted on: Oct 9, 2013 at 07:40 IST

Finally we have a TINA factor - the NOTA!

from:  swarna
Posted on: Oct 9, 2013 at 07:39 IST

It is definitely a great reform despite govt.'s opposition, and not a
small matter as it indeed means that 'all the above candidates are unfit
/unworthy to be public representatives and hence rejected'. Such
candidates should be banned from contesting elections. India is in dire
need of reforms until poverty and illiteracy are eradicated from this
land and women and youth are empowered..

from:  Vyas K Susarla
Posted on: Oct 9, 2013 at 07:20 IST

This most desired NOTA provision imposed by the Supreme Court will definitely help in long run and well accepted. I still have one worry that some magnetically hyped personalities like Narendra Modi of Gujarat when run with few donkeys as a candidates the chances of win are always there and then what can happen? Because a good no of voters go like lambs and goats invalidating and annulling educated voters without weighing negativities of ruling unruly party. Modi carries sizable chunk of negative stuff with him like nail-less Lokpal bill brought very late, tainted ministers, not keeping Dy. Speaker from opposition as a tradition, favoring Adani,autocratic approach, creating vacuum of voice, many more such things, vetoing certain genuine points placed by opposition etc. How a Mrs. Rabdi Devi could be CM in place of Mr. Laluprasad? Can ECI or apex court impose some highest educational qualification for being a CM at least and even for a Minister?

from:  P.P.Shah
Posted on: Oct 9, 2013 at 06:38 IST

Wow at last NOTA come; why it took such a long time despite many writing
to papers (including me) several times to support it - I have used the
option last election but had to forego secrecy ! Pity -my friends
alerted me to be cautious, as the candidate "buying" votes would punish
me ! Okay, escaped it but was under stress for a time ! Other important
point which needs to be decided IS minimum educational qualification for
candidate; even for smallest job in workshop it is demanded; why exempt
those who want to be MLA or MP - another lay down age limit too - if
Supreme court judge who interprets LAW has to retire at 65 how can the
LAW Maker be allowed to be older ; Veteran statesman Rajaji said
senility sets in; all oldies must retire at that age, give chance to
younger aspirants; if respected, be on sidelines and guide them ! Pray
we implement that also soon !

from:  Radhairam
Posted on: Oct 9, 2013 at 03:08 IST

In Economic Times, another former CEC S Y Quraishi has written about
ill-effects of right to reject, some 6 days ago. Here we have another
CEC making a case in point for its introduction.

While that article sounded rather fictional, this article is straight
forward and crystal clear.

So we have parallel comparisons here, not just of different thought
process of two ex-CECs but also the comparison between two different
National Dailies!

from:  Mahesh J
Posted on: Oct 9, 2013 at 02:21 IST

The Supreme Court decision on None of the above(NOTA) a step towards
empowering the voters and offering a choice when none of the nominated
candidate carrying out voter’s expectation. Some have acknowledged that
NOTA as undemocratic as election is meant for selecting a candidate.
NOTA termed as “Negative Voting” but actually its not negative voting
but “A Positive Voting with negative remarks to nominated candidates”.

from:  Abhi
Posted on: Oct 9, 2013 at 01:12 IST

NOTA is a significant development in the Indian electoral history. The wider choice to the voters, needs to be welcomed by one and all. My hunch is that initially, people would press the NOTA option on the EVM more because of novelty factor than out of their disgust for the political class. Hopefully, after one such election process, the voters would make a more informed choice and NOTA would become an important tool for cleansing the election process.

from:  Akshat Mehta
Posted on: Oct 9, 2013 at 00:20 IST
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