‘None of the Above’ option in EVMs will force parties to field candidates known for integrity, says Bench
With a view to bringing about purity in elections, the Supreme Court on Friday held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected. The voter could press the ‘None of the Above’ (NOTA) button in the electronic voting machine.
The court directed the Election Commission to provide the NOTA button in the EVM.
“For democracy to survive, it is essential that the best available men should be chosen … for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote.” Thus the NOTA option would indeed compel political parties to nominate sound candidates, said a Bench of Chief Justice P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi, while allowing a petition filed by the People’s Union for Civil Liberties.
Writing the judgment, the CJI said: “Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties. Gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
The Bench said the NOTA option “will accelerate effective political participation in the present state of the democratic system and the voters will in fact be empowered.” The right to cast a negative vote, “at a time when electioneering is in full swing, will foster the purity of the electoral process and also fulfil one of its objectives, namely, wide participation of people.”
Not allowing a person to cast a negative vote would defeat the very freedom of expression and the right to liberty, it said.
The Bench held that Election Conduct Rules 41(2) and (3) and 49-O of the Rules were ultra vires Section 128 of the Representation of the People Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.
-The Hindu
NOTA will curb impersonation, says court
It will make dissatisfied voters come to booths and exercise their right to say ‘no’: Bench
In the existing electoral system, a dissatisfied voter does not turn up for voting and this provides an opportunity for unscrupulous elements to impersonate him/her. But if the option of ‘none of the above’ candidates is provided, even reluctant voters could turn up at the booth and press the NOTA button in the electronic voting machine, the Supreme Court said on Friday. Allowing a petition filed by the People’s Union for Civil Liberties, a three-judge Bench headed by Chief Justice P. Sathasivam, said the provision for negative voting send clear signals to political parties and their candidates as to what the electorate thought about them.
The Bench pointed out that France, Belgium, Brazil, Greece, Ukraine, Chile, Bangladesh, the United States, Finland, Sweden, Columbia and Spain had provided for neutral/protest/negative voting.
“Eventually, voters’ participation explains the strength of democracy. Lesser voter participation is rejection of commitment to democracy slowly but definitely, whereas larger participation is better for democracy. But there is no yardstick to determine what the correct and right voter participation is. If introducing the NOTA button can increase participation of democracy then, in our cogent view, nothing should stop the same.” Non-participation in the elections would cause frustration and disinterest, “which is not a healthy sign of a growing democracy like India.”
The fundamental right under Article 19(1) (a) of the Constitution read with the statutory right under Section 79(d) of the Representation of the People Act would be violated unreasonably if the right not to vote effectively was denied and secrecy was breached. The right to vote as well as the right not to vote was statutorily recognised under Section 79(d) of the RP Act and Rules 41(2) and (3) and 49-O of the Election Conduct Rules respectively. “Whether a voter decides to cast his vote or not, in both cases, secrecy has to be maintained. It cannot be said that if a voter decides to cast his vote, secrecy will be maintained under Section 128 of the RP Act, read with Rules 39 and 49M, and in case a voter decides not to cast his vote, secrecy will not be maintained. Therefore, a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows secrecy to be violated is arbitrary, unreasonable and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of the RP Act.”
The court said the NOTA button sought for by the petitioners was similar to the ‘ABSTAIN’ button provided for in the voting machines in Parliament, the other two being ‘AYES’ and NOES. For, by pressing the NOTA button, the voter would in effect say he was abstaining from voting since he did not find any of the candidates worthy of his vote.
The Bench, therefore, directed the Election Commission to provide the necessary provision in ballot papers/EVMs and the NOTA button. “Inasmuch as the Commission itself is in favour of the provision for NOTA in EVMs, we direct the EC to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we direct the EC to undertake awareness programmes to educate the masses,” the Bench said.
-The Hindu
NOTA in polls similar to ABSTAIN in Parliament voting: Supreme Court
One of the reasons the Supreme Court cited in allowing introduction of right to cast negative vote by rejecting all candidates contesting the polls is that lawmakers have an option to abstain from voting in Parliament.
A three-judge bench headed by Chief Justice P Sathasivam observed that the option of 'none of the above' (NOTA) in the Electronic Voting Machines and ballot papers is similar to the option of 'ABSTAIN' mentioned in voting machines in Parliament.
The bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, referred to the three options -- AYES, NOES, and ABSTAIN -- given in voting machines in Parliament and said the NOTA option would effectively enable a voter to say he or she is abstaining from voting.
"Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote," the bench said.
It said the option of NOTA should be given at the end of the column containing name of the candidates.
-Indian Express
Architect of NOTA hails SC judgment
NEW DELHI: Former chief election commissioner (CEC) T S Krishnamurthy — considered the chief architect of EC's proposal to enable negative/neutral voting — on Friday welcomed the Supreme Court order, saying that it would put the parties under moral pressure to put up better candidates.
"I had written to the government in 2001 to amend the Conduct of Election Rules to provide for neutral/negative voting on EVMs. I wonder why the Supreme Court took so many years to pass this landmark judgment. Anyway, better late than never!" he told TOI from Chennai.
Krishnamurthy, however, mentioned that Friday's apex court order would not affect the outcome of polls where over 50% of the electorate choose to reject all the candidates and cast a neutral vote. "The first-past-the-post system remains," he clarified.
"But it will surely ignite a debate on whether it would be morally justified to declare any candidate as winner where a majority of the electorate has rejected all the candidates," said the former CEC.
Just like in other countries, where a fresh election is necessitated in case over 50% voters opt for negative/neutral voting, the people of India may demand a re-election in case a majority of voters in a constituency exercise the "none of the above" option.
"It is desirable to bring such a provision in our electoral system as the parties would then be under pressure to carefully choose their candidates, lest they are rejected and a fresh poll is forced. Good candidates will, in turn, lead to better politics and governance," hoped Krishnamurthy.
-TOI
Will implement voters' right to reject candidates straight away: Election Commission
With a view to bringing about purity in elections, the Supreme Court on Friday held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected. The voter could press the ‘None of the Above’ (NOTA) button in the electronic voting machine.
The court directed the Election Commission to provide the NOTA button in the EVM.
“For democracy to survive, it is essential that the best available men should be chosen … for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote.” Thus the NOTA option would indeed compel political parties to nominate sound candidates, said a Bench of Chief Justice P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi, while allowing a petition filed by the People’s Union for Civil Liberties.
Writing the judgment, the CJI said: “Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties. Gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
The Bench said the NOTA option “will accelerate effective political participation in the present state of the democratic system and the voters will in fact be empowered.” The right to cast a negative vote, “at a time when electioneering is in full swing, will foster the purity of the electoral process and also fulfil one of its objectives, namely, wide participation of people.”
Not allowing a person to cast a negative vote would defeat the very freedom of expression and the right to liberty, it said.
The Bench held that Election Conduct Rules 41(2) and (3) and 49-O of the Rules were ultra vires Section 128 of the Representation of the People Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.
-The Hindu
NOTA will curb impersonation, says court
It will make dissatisfied voters come to booths and exercise their right to say ‘no’: Bench
In the existing electoral system, a dissatisfied voter does not turn up for voting and this provides an opportunity for unscrupulous elements to impersonate him/her. But if the option of ‘none of the above’ candidates is provided, even reluctant voters could turn up at the booth and press the NOTA button in the electronic voting machine, the Supreme Court said on Friday. Allowing a petition filed by the People’s Union for Civil Liberties, a three-judge Bench headed by Chief Justice P. Sathasivam, said the provision for negative voting send clear signals to political parties and their candidates as to what the electorate thought about them.
The Bench pointed out that France, Belgium, Brazil, Greece, Ukraine, Chile, Bangladesh, the United States, Finland, Sweden, Columbia and Spain had provided for neutral/protest/negative voting.
“Eventually, voters’ participation explains the strength of democracy. Lesser voter participation is rejection of commitment to democracy slowly but definitely, whereas larger participation is better for democracy. But there is no yardstick to determine what the correct and right voter participation is. If introducing the NOTA button can increase participation of democracy then, in our cogent view, nothing should stop the same.” Non-participation in the elections would cause frustration and disinterest, “which is not a healthy sign of a growing democracy like India.”
The fundamental right under Article 19(1) (a) of the Constitution read with the statutory right under Section 79(d) of the Representation of the People Act would be violated unreasonably if the right not to vote effectively was denied and secrecy was breached. The right to vote as well as the right not to vote was statutorily recognised under Section 79(d) of the RP Act and Rules 41(2) and (3) and 49-O of the Election Conduct Rules respectively. “Whether a voter decides to cast his vote or not, in both cases, secrecy has to be maintained. It cannot be said that if a voter decides to cast his vote, secrecy will be maintained under Section 128 of the RP Act, read with Rules 39 and 49M, and in case a voter decides not to cast his vote, secrecy will not be maintained. Therefore, a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows secrecy to be violated is arbitrary, unreasonable and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of the RP Act.”
The court said the NOTA button sought for by the petitioners was similar to the ‘ABSTAIN’ button provided for in the voting machines in Parliament, the other two being ‘AYES’ and NOES. For, by pressing the NOTA button, the voter would in effect say he was abstaining from voting since he did not find any of the candidates worthy of his vote.
The Bench, therefore, directed the Election Commission to provide the necessary provision in ballot papers/EVMs and the NOTA button. “Inasmuch as the Commission itself is in favour of the provision for NOTA in EVMs, we direct the EC to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we direct the EC to undertake awareness programmes to educate the masses,” the Bench said.
-The Hindu
NOTA in polls similar to ABSTAIN in Parliament voting: Supreme Court
One of the reasons the Supreme Court cited in allowing introduction of right to cast negative vote by rejecting all candidates contesting the polls is that lawmakers have an option to abstain from voting in Parliament.
A three-judge bench headed by Chief Justice P Sathasivam observed that the option of 'none of the above' (NOTA) in the Electronic Voting Machines and ballot papers is similar to the option of 'ABSTAIN' mentioned in voting machines in Parliament.
The bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, referred to the three options -- AYES, NOES, and ABSTAIN -- given in voting machines in Parliament and said the NOTA option would effectively enable a voter to say he or she is abstaining from voting.
"Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote," the bench said.
It said the option of NOTA should be given at the end of the column containing name of the candidates.
-Indian Express
Architect of NOTA hails SC judgment
NEW DELHI: Former chief election commissioner (CEC) T S Krishnamurthy — considered the chief architect of EC's proposal to enable negative/neutral voting — on Friday welcomed the Supreme Court order, saying that it would put the parties under moral pressure to put up better candidates.
"I had written to the government in 2001 to amend the Conduct of Election Rules to provide for neutral/negative voting on EVMs. I wonder why the Supreme Court took so many years to pass this landmark judgment. Anyway, better late than never!" he told TOI from Chennai.
Krishnamurthy, however, mentioned that Friday's apex court order would not affect the outcome of polls where over 50% of the electorate choose to reject all the candidates and cast a neutral vote. "The first-past-the-post system remains," he clarified.
"But it will surely ignite a debate on whether it would be morally justified to declare any candidate as winner where a majority of the electorate has rejected all the candidates," said the former CEC.
Just like in other countries, where a fresh election is necessitated in case over 50% voters opt for negative/neutral voting, the people of India may demand a re-election in case a majority of voters in a constituency exercise the "none of the above" option.
"It is desirable to bring such a provision in our electoral system as the parties would then be under pressure to carefully choose their candidates, lest they are rejected and a fresh poll is forced. Good candidates will, in turn, lead to better politics and governance," hoped Krishnamurthy.
-TOI
Will implement voters' right to reject candidates straight away: Election Commission
NEW DELHI: The Election Commission on Friday said it would straight away implement the Supreme Court judgment directing it to provide a "None of the Above" button on electronic voting machines (EVMs). The button can be pressed by a voter to reject all the candidates in a poll in case he finds them unsuitable.
"The EC welcomes the Supreme Court order, which has upheld its long-pending proposal in this regard. It will help maintain the secrecy of ballot for those who want to record a negative/neutral vote on the EVM," a senior EC functionary told TOI. The functionary added that the 'None of the Above' (NOTA) option will be displayed on EVMs in all future elections, the first being the assembly polls to five states due in November.
"In accordance with the order of the Supreme Court, 'NOTA' shall be printed in a separate panel on the ballot paper below the name of the last contesting candidate. This ballot paper shall be affixed on the ballot unit of the EVM. If the voter presses the button next to NOTA, his desire not to vote for any of the candidates in the fray will get recorded in the EVM in secrecy," the EC said in a press release on Friday.
"Commission shall also make appropriate changes in Part-2 of Form 17C used during counting and the result sheet in Form 20 to separately compile the number of persons who used the option not to vote for any of the candidates in the fray," the EC said, adding that it would issue detailed instructions to ensure compliance with the order of the court as expeditiously as possible.
Incidentally, commission sources explained that the NOTA option would not effect the result of an election where over 50 per cent of the electorate chose to cast negative/neutral votes. As former CEC N Gopalaswami explained to TOI, "Even if 90 voters in an electorate of 100 persons press the NOTA button, the poll will be decided in favour of the candidate who gets the maximum of the remaining 10 votes".
The proposal for negative/neutral voting was first made by the commission in December 2001, during the tenure of JM Lyngdoh, and then reiterated and pushed by the then chief election commissioner TS Krishnamurthy in July 2004. As per the EC's proposal, though the facility of registering a negative/neutral vote was already provided under Section 49-O of the conduct of election rules, secrecy was maintainable only in a ballot system. The system in the EVMs, which has now become the mainstay of elections, however was different and tended to compromise the secrecy of vote in as much as the polling officials and polling agents got to know about the decision of the voter not to cast this vote.
It was to ensure secrecy of neutral/negative votes in the age of EVMs that the EC made this proposal first to the law ministry, former CEC N Gopalaswami told TOI. He said the government, however, sat on the proposal, which then became the matter of a PIL filed by PUCL. The government, however, submitted in the apex court that the writ was not maintainable as 'right to vote' was neither a fundamental nor a constitutional right, but only a statutory right.
"The government had probably sensed the potential of the proposal being upgraded to a 'right to reject' all candidates in the future, which would invalidate any election where the negative voting option has been exercised in over 50% cases," a former bureaucrat pointed out.
The EC, on its part, backed the PUCL prayer to the apex court. This was in line with the view taken by its proposal submitted in 2004, recommending that the law be amended to specifically provide for negative/neutral voting. "For this purpose, Rules 22 and 49B of the conduct of election rules, 1961, may be suitably amended, adding a proviso that in the ballot paper and the particulars on the ballot unit, in the column relating to names of candidates, after the entry relating to the last candidate, there shall be a column 'none of the above' to enable a voter to reject all the candidates," the EC proposed.
However, Gopalaswami said the "right not to vote" was different from " right to reject" as the neutral votes cast would be set aside while deciding the result of an election. "At most, neutral voting is a step closer to 'right to reject', which may necessitate a re-election if a majority of candidates choose to reject all the candidates," he noted.
-TOI
NOTA poses challengeto EVM manufacturers
LUCKNOW: The Supreme Court verdict allowing citizens to exercise 'none of the above' (NOTA) option on the EVMs has thrown a major challenge to two public sector undertakings -- Bengaluru-based Bharat Electronics Limited and Hyderabad-based Electronics Corporation of India Limited -- engaged in the manufacturing of the machines.
Officials at BEL said that there would not be any major change in the hardware of the EVM's ballot unit and a machine can be double up with the designated option of 'none of the above' but large-scale modification will take time. "We will have to work round the clock, if the Election Commission decides to implement the option in forthcoming assembly elections in November," said a senior BEL official.
On the other hand, an official of the ECIL, when contacted, said that at present the facility did not exist, and a significant R&D is needed to ascertain the exact requirement.
The EVMs were designed by the EC in collaboration with the two PSUs after a series of meetings, test-checking of the prototypes and extensive field trials. Now implementation of the new provision would mean an exhaustive ground work to develop software and its incorporation in the hardware, manufacturing, training of personnel and publicity among masses.
Activists feel that implementation of the provision might be tough but it will be a game-changer in India's evolving democracy.
For example, as many as 5,364 voters across UP did not vote under section 49(O) of the Representation of People Act in the 2012 assembly elections as they felt that the candidates in the fray were not fit enough to be their representative. According to activists, the figure was only a fraction of the people who wanted to use the rule but could not do so because of the tedious process and out of fear of being identified as the rule did not guarantee secrecy. Besides, at many polling stations returning officers had no clue about the said rule. They even tried to convince people, saying that opting out would waste the vote. As a result, many preferred to stay home.
"Under section 49(O), a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said elector. The process violates constitutional right of freedom of speech and expression as well as the concept of secret ballot," said Mahipal Singh of PUCL. "But now when the right to reject will become an easy option for people, the number of people exercising it would increase tremendously," he added.
The SC verdict will not only increase the voting percentage but also deter criminals from contesting elections and dent the caste and communal politics. As people will have an option to communicate that they don't like any of the candidate, political parties will be under pressure to field 'clean and acceptable' candidates" said Magsaysay awardee Sandeep Pandey.
A volunteer of NAPM, Bobby Ramakant, who ran a campaign on use of 49 (O), said, "The right to reject will benefit urban voters in a big way, as their education levels are higher than those living in the rural areas. However, if made aware of the provision properly, even the rural voters would not hesitate in exercising this option."
Incharge of Association of Democratic Reforms in UP, Sanjay Singh, said, "In case, the elections are cancelled owing to the fact that more then 50% of voters have exercised the none of the above options, efforts should be made to debar such candidates, who were rejected by the voters.
-TOI
‘Pressure to field better netas’
NEW DELHI: The People's Union for Civil Liberties (PUCL) that had filed the PIL demanding a NOTA — 'None of the above' — button in EVMs in 2004 is jubilant over the Supreme Court ruling on it on Friday.
"It's a big judgment," Sanjay Parikh, counsel for PUCL, told TOI over phone.
"People can now give expression to their wish to not choose anyone. It will have moral implications and force parties to field better candidates."
For the PUCL, it has been a long journey. After they had initially filed their petition, it moved at a glacial pace and was referred to a larger bench only in 2009. Following this, appeals were filed to expedite the process but to no avail.
The main thrust of the argument to introduce a NOTA button on EVMs was retention of secrecy when a voter chooses to register the fact that s/he does not wish to vote for anyone, a provision under rule 49(O) of the Conduct of Election Rules, 1961.
Thus far, a voter doing so had to tell the booth officer as much, and then record his/her signature in Form 17A, thus giving away his/her identity.
Reference: Will voters get to say, 'None of the Above', in next Lok Sabha elections?
NEW
DELHI: Political parties are gearing up for the 16th Lok Sabha polls
scheduled next year. But a writ petition over a crucial electoral reform
is pending before the Supreme Court for almost a decade.
The petition filed by the human rights organisation, People's Union for Civil Liberties (PUCL), has asked for a " None Of The Above" (NOTA) button on electronic voting machines (EVMs) which will enable secrecy of the ballot when voters opt to not vote for any contesting candidate. The petition, filed in 2004, was referred to a larger bench in 2009 and has been awaiting its next hearing since.
The petition filed by the human rights organisation, People's Union for Civil Liberties (PUCL), has asked for a " None Of The Above" (NOTA) button on electronic voting machines (EVMs) which will enable secrecy of the ballot when voters opt to not vote for any contesting candidate. The petition, filed in 2004, was referred to a larger bench in 2009 and has been awaiting its next hearing since.
Currently, if a voter doesn't want to vote for any of the contesting
candidates, he or she can approach the polling booth officer, who then
records their signatures in Form 17 A. This puts on record the fact that
the person has chosen not to vote. This happens under Rule 49 (O) of
the Conduct of Election Rules, 1961. It gives the electorate another
choice to exercise his rights and prevents duplication of votes. There's
one glitch though: this procedure violates the concept of secret
ballot.
It is on this particular ground that the PUCL PIL challenges the constitutional validity of rules 49 (O), 41 (2) and (3) which allow for cancellation of a ballot. PUCL activists say that the rules violate not only the Conduct of Election Rules, but also Articles 19 (1) and 21 of the Constitution, hampering free expression. The NOTA button on the EVM takes care of the issues raised, they say. "Delhi elections are due soon. National elections are coming up. It will be significant to have this provision this time," says Mahi Pal Singh of PUCL. They are not looking to mobilize public opinion on the ground to get an earlier hearing in court. "We respect the law. We don't want to use pressure tactics," says Singh.
Nonetheless, advocate Sanjay Parikh, legal representative of the PUCL, has appealed four times to the court to expedite the process. "Democracy has to be clean. One has to have a right to reject candidates with a criminal past or those who have amassed wealth and the like," he says.
The Election Commission agreed to the need for a NOTA button in a counter affidavit. The Ministry of Law Justice (Legislative Department), on the other hand, not only termed the petition liable to be dismissed, but also called the possibility of someone turning up to register a negative vote "unrealistic". There is another reason why the ministry offered for the dismissal of the petition. "It would hardly be easy for the largely illiterate Indian electorate to understand the concept of a negative vote," writes Kiran Puri of the Ministry of Law and Justice, in a 2005 affidavit.
Back in December 2001, the Election Commission of India wrote to the Ministry of Law, Justice and Company Affairs, recommending the inclusion of negative voting in the rules. Article 324 of the Constitution prescribes the "Superintendence, direction and control of elections to be vested in an Election Commission." But in this case, the ECI claims that a provision of this sort would require a new legislation from Parliament. "If the field is not covered or the rules are silent on it, we can do something. But here, rules prescribe what is to be put on the machine. The rules require amendment from Parliament," says Akshay Rout, director-general, Election Commission of India.
It is on this particular ground that the PUCL PIL challenges the constitutional validity of rules 49 (O), 41 (2) and (3) which allow for cancellation of a ballot. PUCL activists say that the rules violate not only the Conduct of Election Rules, but also Articles 19 (1) and 21 of the Constitution, hampering free expression. The NOTA button on the EVM takes care of the issues raised, they say. "Delhi elections are due soon. National elections are coming up. It will be significant to have this provision this time," says Mahi Pal Singh of PUCL. They are not looking to mobilize public opinion on the ground to get an earlier hearing in court. "We respect the law. We don't want to use pressure tactics," says Singh.
Nonetheless, advocate Sanjay Parikh, legal representative of the PUCL, has appealed four times to the court to expedite the process. "Democracy has to be clean. One has to have a right to reject candidates with a criminal past or those who have amassed wealth and the like," he says.
The Election Commission agreed to the need for a NOTA button in a counter affidavit. The Ministry of Law Justice (Legislative Department), on the other hand, not only termed the petition liable to be dismissed, but also called the possibility of someone turning up to register a negative vote "unrealistic". There is another reason why the ministry offered for the dismissal of the petition. "It would hardly be easy for the largely illiterate Indian electorate to understand the concept of a negative vote," writes Kiran Puri of the Ministry of Law and Justice, in a 2005 affidavit.
Back in December 2001, the Election Commission of India wrote to the Ministry of Law, Justice and Company Affairs, recommending the inclusion of negative voting in the rules. Article 324 of the Constitution prescribes the "Superintendence, direction and control of elections to be vested in an Election Commission." But in this case, the ECI claims that a provision of this sort would require a new legislation from Parliament. "If the field is not covered or the rules are silent on it, we can do something. But here, rules prescribe what is to be put on the machine. The rules require amendment from Parliament," says Akshay Rout, director-general, Election Commission of India.
Former election commissioner M S Gill is not convinced about the
efficacy of the NOTA option. He suggests another method, wherein a
majority of 50% or more becomes the necessary criterion for a candidate
to win an election. "I wanted to enact this in my time. Under this, if
no one gets 50%, there can be a re-election between the top two
candidates. It will take care that all casteist and communal forces are
done away with. This solution is workable with the current voting
machines," says Gill.
The Aam Aadmi Party (AAP) too has demanded the formalisation of the NOTA provision. "Under 49 (O) one can simply cancel a vote, to avoid misuse. It doesn't necessarily imply rejection. The kind of candidates that are fielded these days, the public would reject them if given a chance. I feel morally bound to vote, but if I don't like any candidate, I have a fundamental right to reject all of them," says Manish Sisodia of the AAP.
-TOI
The Aam Aadmi Party (AAP) too has demanded the formalisation of the NOTA provision. "Under 49 (O) one can simply cancel a vote, to avoid misuse. It doesn't necessarily imply rejection. The kind of candidates that are fielded these days, the public would reject them if given a chance. I feel morally bound to vote, but if I don't like any candidate, I have a fundamental right to reject all of them," says Manish Sisodia of the AAP.
-TOI
'NOTA, the best move to protect democracy'
KANPUR:
Indian Institute of Technology-Kanpur alumni and head of department of
mathematics at Chhatrapati Shahuji Maharaj University, V N Pal, who has
been campaigning for electoral reforms, hailed the Supreme Court
judgment granting the right to reject the voters.
Prof Pal, one of the petitioners, had filed the PIL on April 12, 2004 demanding that a 'none of the above' (NOTA) column be included on the ballot papers or the electronic voting machine (EVMs).
Prof Pal, one of the petitioners, had filed the PIL on April 12, 2004 demanding that a 'none of the above' (NOTA) column be included on the ballot papers or the electronic voting machine (EVMs).
The SC admitted the PIL on April 12, 2004 and passed its order on July
7, 2004 in which the court stated that it was already seized with the
issue, sought to be raised in this petition (WP-161/2004). The petition
was later rejected on technical grounds. Owing to some problem, Pal
could not pursue the case further.
However, his dreams came true on Friday, when in a historic judgment, the apex court, directed the Election Commission to give the electorate "none of the above" (NOTA) provision, as in to reject all candidates in a constituency.
"A great judgment and I personally welcome the decision, for which I have waited for nine years. I also feel that it's one of the best move to protect democracy and citizens' rights. For sure it will clean Indian polity by discarding corrupt and mischievous elements," said Prof VN Pal.
"I have advocated insertion "none of the above" as the last column of the ballot paper or the EVMs so that voter takes it up as his last option," added Prof Pal while talking to TOI.
Prof Pal further said that though, the court did not say what would happen if the votes cast under the NOTA option outnumber the votes received by candidates. "But in the petition, I had strongly contended that candidates securing lesser votes than the NOTA, be completely banned from contesting polls in future. Also, if all candidates are rejected by majority NOTA vote, the elections should be declared null, void and fresh elections be held, besides existing candidates should also not be allowed to file nominations for the next round. I will file a petition soon in order to get these points included," he said.
He further said, "the process under 49-0 was quite cumbersome, voters had to ask for a separate form under the rule. Forms were not available at times, and people did not want to take the trouble."
Rule 49-O is a part of The Conduct of Elections Rules, 1961.
It states: "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, decided not to record his vote, a remark shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark."
Said Pal, "Still there are many who even don't know that they have to first apprise the polling officer not to activate the EVM before they move to the enclosure for voting. It clearly violates the requirement of secrecy in the electoral."
Section 49(O) violates the Constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot, he added.
Prof V N Pal (58), who has taught mathematics in prestigious colleges and institutes, including the Indian Institute of Technology (IIT), had unsuccessfully contested several Lok Sabha, Assembly and Mayoral elections besides country's Presidential and Vice-Presidential elections in the past.
-TOI
However, his dreams came true on Friday, when in a historic judgment, the apex court, directed the Election Commission to give the electorate "none of the above" (NOTA) provision, as in to reject all candidates in a constituency.
"A great judgment and I personally welcome the decision, for which I have waited for nine years. I also feel that it's one of the best move to protect democracy and citizens' rights. For sure it will clean Indian polity by discarding corrupt and mischievous elements," said Prof VN Pal.
"I have advocated insertion "none of the above" as the last column of the ballot paper or the EVMs so that voter takes it up as his last option," added Prof Pal while talking to TOI.
Prof Pal further said that though, the court did not say what would happen if the votes cast under the NOTA option outnumber the votes received by candidates. "But in the petition, I had strongly contended that candidates securing lesser votes than the NOTA, be completely banned from contesting polls in future. Also, if all candidates are rejected by majority NOTA vote, the elections should be declared null, void and fresh elections be held, besides existing candidates should also not be allowed to file nominations for the next round. I will file a petition soon in order to get these points included," he said.
He further said, "the process under 49-0 was quite cumbersome, voters had to ask for a separate form under the rule. Forms were not available at times, and people did not want to take the trouble."
Rule 49-O is a part of The Conduct of Elections Rules, 1961.
It states: "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, decided not to record his vote, a remark shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark."
Said Pal, "Still there are many who even don't know that they have to first apprise the polling officer not to activate the EVM before they move to the enclosure for voting. It clearly violates the requirement of secrecy in the electoral."
Section 49(O) violates the Constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot, he added.
Prof V N Pal (58), who has taught mathematics in prestigious colleges and institutes, including the Indian Institute of Technology (IIT), had unsuccessfully contested several Lok Sabha, Assembly and Mayoral elections besides country's Presidential and Vice-Presidential elections in the past.
-TOI
Right to Reject: SC triggers beginning of electoral reforms
The citizen of India always had the right not to vote, since voting
is not compulsory. And he could exercise this right by simply staying at
home. And he could either abstain for "conscientious" reasons, or
because he was lazy.
In the ballot-paper days, the conscientious
abstainer could make his point more pro-actively if he wished, by going
to the polling station, taking the ballot paper and then returning it
unmarked (Rule 41(2), Conduct of Election Rules 1961). He would have
voted "negatively", but by the very act of returning, he would have
disclosed the nature of his vote. The only option he had, if he wanted
to maintain secrecy, was to deliberately cast an invalid vote.
The problem was aggravated with the introduction of electronic voting
machines (EVMs). Now, there would be no green light on the control unit
and no "beep" if he did not press a button. This again was a public
disclosure of his dissatisfaction with all the candidates.
The presiding officer was required to record that no vote was cast, and obtain his signature or thumb-impression against the remark (Rule 49-M, Conduct of Election Rules, 1961). This completely deprived him of his right to secrecy, and that is what Friday's landmark Supreme Court judgement was all about. Apart from striking down the offending provisions of the Conduct of Election Rules 1961, the court has directed that a "NOTA" (none of the above) option be provided in the ballot papers and EVMs so that the voter keeps his choice to himself.
Secrecy of Ballot
The judgment clears the confusion created by the court's oftexpressed view that the right to vote is not a fundamental right. It reiterates that it is a statutory right. But it makes it clear that once a person acquires the right to vote his fundamental right to freedom of expression under Article 19(1)(a) cannot be restricted, and that right extends not only to choosing between rival candidates, but also to indicate his dissatisfaction with all of them.
In the electoral context, this dissatisfaction also has to be exercised in secret. Secrecy of ballot is essential for free and fair elections and, if a positive vote is secret, so should a negative vote be. Not guaranteeing him the secrecy of the negative vote infringes his freedom of expression.
There is also the question of the right to equality under Article 14 of the Constitution which the court notices. If the "positive" voter has the privilege of secrecy, so should the "negative" voter. Unconvincingly, the court also brings in "liberty" under Article 21.
Apart from its significance in the jurisprudence of fundamental rights, the judgement will, in due course, improve the quality of public life. Low voter turnouts have never persuaded parties to put up better candidates.
Now, a recording of significant numbers of negative votes will ensure that political parties do not choose candidates with doubtful credentials. If the voter knows that his negative vote is going to have an impact, there is greater incentive for him to go to the polling booth to record his protest actively, instead of staying at home. The court rightly believes that this will curb bogus voting.
This judgement is a great example of a 'co-operative' litigation between the citizen and the Election Commission. After all, it was the Commission itself which set the ball rolling way back in 2001 by writing to the government, asking for the NOTA provision (the PUCL writ petition was filed in 2004). The Commission argued in its letter that the electoral right under section 79(d) of the Representation of the People Act 1951 included the right not to cast a vote.
It said that the NOTA option would promote free and fair elections and provide an opportunity to the elector to express his dissent against or disapproval of the contesting candidates. The Central government, of course, played spoilsport in the litigation, but that is not something to fret about. Good law is laid down by the courts only when rival viewpoints are examined, and not when parties happily concede.
Beginning of Reform
The court is being faulted for not spelling out the further consequences of its decision. Suppose, it is asked, in a given case, the number of negative votes is in excess of the highest number of votes polled by a candidate. What would be the consequence? This is not a matter for the court to decide or prescribe. It is entirely a matter for Parliament.
Practically, of course, it is unlikely that a situation of this nature will arise. But if it does the answer must be consistent with the 'first past the post' system, which we follow. If with even 40% of the electorate voting, it is the candidate who gets the highest number of votes who gets elected, the result must be the same, when the majority of the recorded votes are negative.
Even in such a situation, it is the candidate with the highest number of positive votes who will get elected. Any other view would lead to a constitutional stalemate, and the death of parliamentary democracy itself.
(The writer is a senior Supreme Court advocate and was additional solicitor general in the NDA government)
The presiding officer was required to record that no vote was cast, and obtain his signature or thumb-impression against the remark (Rule 49-M, Conduct of Election Rules, 1961). This completely deprived him of his right to secrecy, and that is what Friday's landmark Supreme Court judgement was all about. Apart from striking down the offending provisions of the Conduct of Election Rules 1961, the court has directed that a "NOTA" (none of the above) option be provided in the ballot papers and EVMs so that the voter keeps his choice to himself.
Secrecy of Ballot
The judgment clears the confusion created by the court's oftexpressed view that the right to vote is not a fundamental right. It reiterates that it is a statutory right. But it makes it clear that once a person acquires the right to vote his fundamental right to freedom of expression under Article 19(1)(a) cannot be restricted, and that right extends not only to choosing between rival candidates, but also to indicate his dissatisfaction with all of them.
In the electoral context, this dissatisfaction also has to be exercised in secret. Secrecy of ballot is essential for free and fair elections and, if a positive vote is secret, so should a negative vote be. Not guaranteeing him the secrecy of the negative vote infringes his freedom of expression.
There is also the question of the right to equality under Article 14 of the Constitution which the court notices. If the "positive" voter has the privilege of secrecy, so should the "negative" voter. Unconvincingly, the court also brings in "liberty" under Article 21.
Apart from its significance in the jurisprudence of fundamental rights, the judgement will, in due course, improve the quality of public life. Low voter turnouts have never persuaded parties to put up better candidates.
Now, a recording of significant numbers of negative votes will ensure that political parties do not choose candidates with doubtful credentials. If the voter knows that his negative vote is going to have an impact, there is greater incentive for him to go to the polling booth to record his protest actively, instead of staying at home. The court rightly believes that this will curb bogus voting.
This judgement is a great example of a 'co-operative' litigation between the citizen and the Election Commission. After all, it was the Commission itself which set the ball rolling way back in 2001 by writing to the government, asking for the NOTA provision (the PUCL writ petition was filed in 2004). The Commission argued in its letter that the electoral right under section 79(d) of the Representation of the People Act 1951 included the right not to cast a vote.
It said that the NOTA option would promote free and fair elections and provide an opportunity to the elector to express his dissent against or disapproval of the contesting candidates. The Central government, of course, played spoilsport in the litigation, but that is not something to fret about. Good law is laid down by the courts only when rival viewpoints are examined, and not when parties happily concede.
Beginning of Reform
The court is being faulted for not spelling out the further consequences of its decision. Suppose, it is asked, in a given case, the number of negative votes is in excess of the highest number of votes polled by a candidate. What would be the consequence? This is not a matter for the court to decide or prescribe. It is entirely a matter for Parliament.
Practically, of course, it is unlikely that a situation of this nature will arise. But if it does the answer must be consistent with the 'first past the post' system, which we follow. If with even 40% of the electorate voting, it is the candidate who gets the highest number of votes who gets elected, the result must be the same, when the majority of the recorded votes are negative.
Even in such a situation, it is the candidate with the highest number of positive votes who will get elected. Any other view would lead to a constitutional stalemate, and the death of parliamentary democracy itself.
(The writer is a senior Supreme Court advocate and was additional solicitor general in the NDA government)
A very positive step in Indian history
ReplyDeleteA step will that will clean up Indian politics in the long run
ReplyDelete