Unless the NOTA option is accompanied by meaningful electoral reform, voters cannot be expected or compelled to flock to polling booths

Civil liberties activists in India have had to fight long for, first, the right to cast a negative vote, and next, to protect the secrecy of this negative ballot. In the age of the Electronic Voting Machine (EVM), once the invalid vote ceased to exist, voters had only one option to show their dissatisfaction with the candidates seeking to represent them, and with the whole political system: staying away from the polling booth. The problem, of course, was that the activist-protesters got clubbed with those too lazy to stand in a queue and vote. Then came the recourse to 49-O, a rule in the Conduct of Election Rules, which allowed voters to not cast their vote after entering the polling booth and registering their electoral roll number in the register of electors in Form 17A. Under this rule, the voters had to record their decision to not vote in the remarks section of the form available with the presiding officer. This record of non-voting was necessary to ensure that the presiding officer was able to tally, after the voting came to an end, the total votes polled with the number of voters who had signed against their roll number in the register. But this effectively compromised the secrecy of the so-called negative vote. After a long legal battle, the Supreme Court last month ordered the provision of a “None of the Above” (NOTA) option in EVMs and ballot papers at the end of the list of the contesting candidates.

Potential

Hard-won it might be, but NOTA can at best nudge the electoral system towards incremental changes. While delivering the judgment on this issue, the Supreme Court expressed hope that this would accelerate effective political participation of the people in the democratic system and empower the voters. In its immediate effect, however, a NOTA vote is not much more than an “invalid” vote on a ballot paper. The NOTA option cannot result in the rejection of the entire list of contestants, and even if a majority of the people press the NOTA panel on the EVM, the contestant with the largest number of votes would still win under the first-past-the-post system.

If the NOTA option holds not just some symbolic value, and is not a mere outlet for moral outrage, it is because of what it could do rather than because of what it is. Former Chief Election Commissioner N. Gopalaswami says in his article in The Hindu (editorial page, “NOTA small matter, this,” October 9, 2013), “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.” NOTA will gain political legitimacy when it outscores the contestants. Then, it is hoped, the option would not be allowed to remain impotent, and there will be a popular demand for the cancellation of the election.

But if the realisation of NOTA’s potential is a desired goal, then the time to invest NOTA with more purpose is now and not later after an election in which NOTA outscores the winner. Indeed, if a NOTA vote that can reject all contestants is in place, political parties might pay more attention to who they are nominating as candidates.

In the NOTA judgment, the Supreme Court voiced this expectation of political parties: “When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.” But electoral reform in India has been slow, and often at the initiative of the judiciary.

The National Commission to Review the Working of the Constitution under M.N. Venkatachaliah considered and rejected both the concept of negative voting and recall of elected representatives on grounds of being either impracticable or unnecessary. However, it gave serious thought to making 50 per cent of the total votes plus one vote as the minimum for a candidate to get elected, and a run-off if no candidate met that requirement. But the Commission stopped short of including it as a recommendation, and instead, suggested that the government and the Election Commission study the issue more carefully: “In the circumstances, the Commission while recognising the beneficial potential of this system for a more representative democracy, recommends that the Government and the Election Commission of India should examine this issue of prescribing a minimum of 50 per cent plus one vote for election in all its aspects, consult various political parties, and other interests that might consider themselves affected by this change and evaluate the acceptability and benefits of this system. The Commission recommends a careful and full examination of this issue by the Government and the Election Commission of India.” Instead of waiting for NOTA to emerge as a springboard for change, this could be made the starting point for reform.

Mandatory voting

Interestingly, the introduction of the NOTA option seems to have prompted a clamour for mandatory voting, especially from the Bharatiya Janata Party (BJP). The two concepts are related, but not inseparably intertwined. But in the reasoning of former BJP president L.K. Advani, now that the NOTA option serves the purpose of those who want to stay away from voting for political reasons, voters no longer have any justification for not going to the polling station. “As things stand today, voters who without any legitimate justification have not been exercising the valuable right of franchise the Indian Constitution has conferred on them have, unwittingly thus, been casting a negative vote against all the contesting candidates without intending to do so,” he wrote on his blog. “I hold, therefore, that a negative vote would become really meaningful if it is accompanied also by the introduction of mandatory voting.”

But what about those who profess no faith in the electoral, or even the democratic, system? Is their objection to voting not politically valid? If voting were to be made compulsory, a negative vote is, of course, integral to the process. But the reverse is not true. If a negative vote were to be made mandatory, compulsory voting need not follow. Mandatory voting will be meaningful only when accompanied by a negative vote, but, contrary to what Mr. Advani says, a negative does not need any infusion of meaning from mandatory voting. A negative vote is a simultaneous assertion of faith in the political system and of absence of faith in the given set of political players.

True, there are several countries which have made voting mandatory. But in any democracy, the deterrence can be no more than a nominal fine. The principle behind the negative vote is that no voter should be “forced” to “choose” a representative he does not approve of. But merely because a voter is free to reject all candidates, she cannot be forced to go to a polling station. Making voting compulsory will more than negate the gain made with the introduction of the negative vote. The negative vote emanates from a negative right to stay away, in whatever manner, from a political process free from any governmental coercion. To make participation in the political process mandatory will be in violation of this very same negative right. Illness or some pressing work or plain laziness can be valid reasons to stay away from the polling booth. But more importantly, in a democracy, the voters have the right to not participate in voting. The right to vote, whether it is a fundamental right or a mere statutory right, if it is a right at all, implies the right to not vote. The NOTA option is a step forward; it should be used to further widen democratic choices, and not allowed to bring in coercive means to increase voter participation.

suresh.nambath@thehindu.co.in

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