‘NOTA will not serve democracy’

FORMER Secretary-General of the Lok Sabha Subhash Kashyap, now professor at the Centre for Policy Research, has been closely associated with the working of the Indian Parliament for over 37 years. He has served as a member of the National Commission to Review the Working of the Constitution and as the chairman of its Drafting and Editorial Committee. In an interview to Frontline , he talks about the implications of the Supreme Court’s order that voters must be given the “None of the above”, or NOTA, option to enable negative/neutral voting for parliamentary democracy, other ways of decriminalising politics, and the need for a more holistic approach towards electoral reforms.

There has been a spate of Supreme Court judgments (the Lily Thomas judgment, the conviction of Members of Parliament and Members of the Legislative Assembly, and more recently NOTA) where the judiciary is being seen as trying to clean up politics. How do you see this development and what are its larger implications?

I do not think that the judiciary exceeded its brief in the NOTA judgment. In fact, it has stopped short of doing so by not providing for the right to reject. The right to reject would have come strictly in the legislative domain. There is a difference between NOTA and the right to reject. The NOTA judgment will not affect electoral results, in the sense that the person getting the largest number of votes will still be declared the winner. The right to reject would have meant rejecting all the candidates, meaning thereby that if the number of those voting NOTA exceeded the number of votes that the winning candidate receives, then none of the candidates would be declared winner and there would have to be re-election. The point I’m trying to make is that if the judiciary had done this, they would have entered the legislative domain, which they have avoided.

The other judgments (Lily Thomas) are within the limits of judicial review. In the Lily Thomas judgment, the Supreme Court declared Section 8(4) of Representation of the People Act (RPA) ultra vires the Constitution because Article 102 of the Constitution, which laid down the conditions for disqualification of Members of Parliament, categorically made it applicable not only to candidates but also to members. Any disqualifications laid down by law should, therefore, have been equally applicable to candidates and members. Since Section 8(4) made an exception in the case of members, and allowed them to continue if they made an appeal within three months, this was struck down as ultra vires.

How do you perceive the reaction of the political parties to these developments?

With regard to the Lily Thomas judgment the political parties had much to be bothered about. But where NOTA is concerned, it does not really have enough potential for political parties to be concerned about. They must have protested without understanding the nuances of the likely impact just under the impression that the judiciary was interfering in legislative matters. But had they studied the judgment carefully, I don’t think they would have found much potential for its impact so far as their interests are concerned.

As a constitutional expert, how do you see the NOTA judgment as linking the right to vote to the freedom of expression? Is this a creative reading and extension of the fundamental rights or do you think it is just too far-fetched?

The right to vote already includes the right not to vote. That right was already available. People who did not want to vote did not go to the polling booth, so they were exercising their right not to vote. They enjoyed that freedom of expression. Also, under Rule 49(O) of the RPA, they still had the right to say none of the above. However, they had to convey their choice to the polling officer. The objection raised by the petitioners was that it affected the secrecy of vote and if the vote is not secret, it’s not free. But the secrecy of vote has already been compromised by the Supreme Court itself in Kuldip Nayar vs Union of India in 2006. In this judgment, the Supreme Court did away with the secrecy of votes in selecting Rajya Sabha members. Now, the voters for the Council of States membership are required to show their vote to the party representative. So there is no secrecy of vote for at least one house of Parliament. Taking that into consideration, the objection raised on the grounds of the secrecy of vote being compromised does not hold much relevance.

The petitioners in the NOTA case have also argued that this is a movement towards making democracy more representative, and leaders more accountable. How do you respond to that?

The NOTA judgment is not going to substantially affect either criminalisation of politics or the representative credentials of members. Parliamentary democracy ideally is a system in which people govern themselves through the representatives they elect. Elections, therefore, are necessary for a democratic system. Elections are held to elect representatives. In my view, electing should not include the right not to elect. In the present political atmosphere, in a state of disconnect between the people and the politicians, the general middle-class perception, perhaps wrongly so, is that all politicians are corrupt and come from a criminal background or are elected with money and muscle power. In this scenario, if the idea of NOTA is accepted by a large number of voters across the country, it will not serve the purpose of democracy. It will be a sheer invitation to say goodbye to democracy and move to a state of chaos and anarchy.

The ground realities are that a number of voters go to vote for some consideration. Will there be enough motivation for people going to the polling booth and declaring that they would not like to vote for anyone? Would you stand in the sun for three hours in front of a polling booth just to declare that you would not vote for anyone? One could think that a large-scale, countrywide movement could persuade people to use the ‘none of the above’ provision. But even then I’m extremely doubtful if we will be able to persuade the majority of voters to really say NOTA. The experience of using 49(O) has been so dismal. Under 49(O), enough forms have never been filled up in any constituency to even require counting. Therefore, I do not think that it is practicable to hope that the number of those saying NOTA would exceed the number of votes received by the winning candidate. Therefore, NOTA will not have any effect in decriminalisation of politics or strengthening parliamentary democracy.

The basic approach of NOTA smacks of negativity. The people who want to use NOTA certainly have the constitutional right to put up a clean candidate with no criminal records whom they prefer. This would be a positive approach. There are independent candidates fighting elections too. This negative approach will be of no use in strengthening democracy unless you bring in someone with positive credentials whom you would want to contest.

Also, those who are in favour of NOTA presume a vote in favour of party dictatorship. Those who want to say NOTA believe that they will be able to influence the political parties not to field candidates with a criminal background for fear that they would all be rejected. They are presuming that they would have to function through the existing political parties while they have every right to new ones. They also have the right to contest elections as independents. There are instances of independents defeating party candidates. So if you can find a good candidate who is popular and who has served the constituency, he can get elected. Why do you presume that only political parties have to be prevailed upon to put up better candidates? Political parties can stand discredited if you put up good candidates and if they get elected. But if you presume that the solution lies only in political parties, and that a large number of people will vote for candidates with criminal backgrounds, then you are admitting defeat even before the struggle starts for cleansing electoral politics. While I believe that the motivation behind the judgment and the efforts of civil society suggestions in regard to NOTA are laudable, to me the device seems to be negative, far removed from ground realities and not practicable, unless it is accompanied by several other electoral and political party reforms.

MONEY AND ELECTIONSWhat could be the other ways of decriminalising politics apart from active intervention by the judiciary? Do you think the political parties should proactively do some screening of candidates?

The primary source for criminalisation of politics is the money required for political activities of the party. The perception is that a large part of the money for political parties and elections comes from the world of crime. In the Lok Sabha itself, about 162 candidates have declared their criminal backgrounds in the nomination papers. The critics of criminalisation of politics do not address the vital question of where and how funding for political parties is going to be met.

Government funding is not the answer. As of now there are 1,400 political parties registered with the Election Commission. How will you provide state funding to all these parties?

At present you need a law that mandates political parties to promote internal democracy, maintain proper accounts, subject accounts to audit, and make audited accounts available in the public domain. If you provide public funding, you will have to regulate the political parties.

There could be a provision for state funding to be provided in kind—like allowing election meetings at public cost for all recognised political parties, providing them with printed material, pamphlets, brochures, manifestos, posters—within the prescribed limits, free time on TV and radio, other audio-visual aid. This will have to be accompanied by a drastic reduction of the cost of elections. In the last two general elections, the model followed in Mizoram is a good instance where costs for elections were reduced drastically. Public meetings were organised, where candidates were required to speak and there were very little expenses on posters, cut-outs, pamphlets.

No single electoral reform—NOTA or the right to recall—will in itself help unless we take a holistic view of electoral reforms. The most important issue that remains unaddressed is the representative legitimacy of the elected candidates. As of now, more than 83 per cent of the members of the Lok Sabha have more votes cast against each one of them than for them, and persons have even got elected with 7 per cent, 15 per cent, 20 per cent of the total share of votes. In the last U.P. [Uttar Pradesh] Assembly elections, 93 per cent of the winners had more votes cast against each one of them than for them. Can you call them representatives of the people? This problem requires systemic reforms. I have been suggesting that unless a person gets 50 per cent plus one votes, he should not be considered elected.

There is a need for systemic changes without a radical change of the first-past-the-post system. If no one gets it, then there should be re-polling the very next day, inviting the first two with the largest number of votes. In the long run, the greater benefit will be that this will gradually do away with elections on the basis of vote banks of caste/community affiliations. The present system is divisive and caters to politicians building separate identities on grounds of caste and community. Once a politician has to secure more than 50 per cent, he will have to appeal on grounds of governance and go beyond considerations of caste and community. If you take care of representational legitimacy, some of the other issues such as money and muscle power in politics can be dealt with.