‘None of the above’

The Supreme Court upholds the right of the voter to reject in secrecy all the candidates in an election and be counted.

A civil society activist at a polling booth informing voters about their right to reject the candidates, during a municipal election in Chandigarh in December 2011.

ON September 27, a Supreme Court Bench comprising the Chief Justice of India Justice P. Sathasivam, Justice Ranjana Prakash Desai and Justice Ranjan Gogoi, in the case of People’s Union for Civil Liberties vs Union of India , granted the plea of the petitioners to extend the principle of secrecy of ballot to those voters who decide not to vote. It rejected the stand of the Union of India that the principle of secrecy of ballot is extended only to those voters who have cast their vote and the same in no manner can be extended to those who have not voted at all.

The court reasoned that the right to vote and the right not to vote have been statutorily recognised under Section 79(d) of the Representation of the People Act (RPA) and Rules 41(2) and (3) and 49(O) of the Conduct of Election Rules respectively, and that secrecy has to be maintained in both cases. Therefore, it held that Rules 41(2) and (3) and 49(O) read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows the secrecy to be violated, are arbitrary, unreasonable and violative of the freedom of expression guaranteed under Article 19(1)(a), and are also ultra vires Sections 79(d) and 128 of the RPA.

Section 79(d) defines “electoral right” as the right of a person to stand or not to stand as or from being a candidate, or to vote or refrain from voting at an election. Section 128 requires every officer who performs any duty in connection with the recording or counting of votes at an election to maintain secrecy of the voting, and seeks to punish anyone contravening this provision with imprisonment for a term which may extend to three months or with a fine or with both. Rule 49(O) of the Conduct of Election Rules, 1961, requires that if an elector, after his electoral roll number has been duly entered in the register of voters in Form-17A and has put his signature or thumb impression thereon as required under Sub-Rule (1) of Rule 49L (which deals with the procedure for electronic voting) decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17-A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark. Rule 41(2) states that if an elector, after obtaining a ballot paper, decides not to use it, he shall return it to the presiding officer, and (the ballot paper so returned and the counterfoil of such ballot paper) shall be marked as “Returned: Cancelled” by the presiding officer. Rule 41(3) states that all ballot papers cancelled under Sub-Rule (1) or Sub-Rule (2) shall be kept in a separate packet. Rule 41(1) deals with spoilt ballot papers. Relying on these provisions, the Supreme Court held that a right not to vote has been recognised both under the RPA and the Rules. Therefore, it held that a positive “right not to vote” is a part of the expression of a voter in a parliamentary democracy and it has to be recognised and given effect to in the same manner as the right to vote.

The court further reasoned that a voter may refrain from voting at an election for the reason that he does not consider any of the candidates in the field worthy of his vote. One of the ways of such expression may be to abstain from voting, which is not an ideal option for a conscientious and responsible citizen. The only way by which it can be made effectual is by providing a button in the electronic voting machines (EVMs) to express that right, the court held. Under the ballot paper system (prior to the introduction of EVMs in 1998), it was possible to secretly cast a neutral/negative vote by dropping one’s ballot in the ballot box without making any mark on it. Under the EVM system, such secret neutral voting is not possible, in view of Rule 49B (which deals with arranging the names of the candidates on the balloting unit of the EVM), which has no provision for a neutral button.

In contrast to the stand of the Union of India, the Election Commission (E.C.) supported the stand of the petitioner that a provision for “None of the Above” (NOTA) button should be made in the EVMs/ballot papers, so that the elector gets an opportunity to express his dissent/disapproval against the contesting candidates and will have the benefit of reducing bogus voting.

In Paragraph 49 of the judgment, the court held that the essence of the electoral system should be to ensure the freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticise and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast his vote negatively defeats the very freedom of expression and the right ensured in Article 21, that is, the right to liberty. The court was optimistic that if introducing a NOTA button can increase participation in democracy, then nothing should stop it. “Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India,” it concluded.

In Paragraph 58, the court underlined that as many as 13 countries had provided for neutral/protest/negative voting in their electoral systems. These are France, Belgium, Brazil, Greece, Ukraine, Chile, Bangladesh (all providing for NOTA), Finland, Sweden, the United States (all the three countries providing for Blank Vote and/or write-in; in the U.S., the State of Nevada provides for NOTA), Columbia and Spain (both providing for Blank Vote). (The “write-in” form of negative voting allows a voter to cast a vote in favour of any fictional name/candidate.)

The E.C. had submitted to the court that the provision for a negative or neutral vote can be provided in the existing EVM without any additional cost or administrative effort or change in design or technology of the existing machines. In view of the E.C.’s support to the provision of NOTA button in the EVMs, the court directed it to implement it in a phased manner with the assistance of the government and undertake awareness programmes to educate the masses. The court directed the government to extend necessary help to the E.C. for the purpose.

The judgment has led to mixed reactions. While some experts have hailed the verdict and its potential to cleanse democracy, others have expressed their misgivings. It is pointed out that even if the number of NOTA voters exceeds 50 per cent in an election, it is unlikely to have any impact on the political class, which may continue to field candidates with dubious credentials. Surely, the NOTA button will test the resilience of Indian democracy.