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)
 
 

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