By Prof. V.P. Gupta,Director, Rau’s IAS Study Circle, New Delhi – Jaipur

This article caters to the Polity and Governance portion of General Studies Paper II and Essay Paper in UPSC Main Examination.

The option of None of the Above (NOTA) on Electronic Voting Machine (EVM) gives the voters the option not to vote for any of the candidates in the election. The number of votes cast for NOTA signifies voter’s preference not to elect any of the candidates fielded by various political parties and in a way this is a way of not accepting any political candidate during an election process. It was with this perspective, the concept of NOTA was allowed in Indian elections from September 2013 by the Supreme Court for people to express their choice. However, apart from finding its existence on EVM, NOTA is yet to find political significance as a tool for greater social and political change.

In sporadic incidents, we often hear news on giving NOTA political credence by certain aware section of the society who believes in clean and transparent political process. In Kerala, a group of women activists hit the road urging people not to elect any candidate if no woman was present in the fray. In Tamil Nadu, a youth group campaigned for NOTA as a protest vote against corruption. NOTA polling figures are still small. On an average, the maximum NOTA vote share has not crossed 2.02% of the total votes polled in any election cycle which is a small number. If NOTA has to gain value, then it must prove its worth not only in terms of number of votes cast but also in terms of its social value and as an agent of social change through better choice of candidates fielded by political parties. In this article, let us understand and analyse the life of NOTA after its inception through a Supreme Court judgment.    

Evolution of NOTA

The proposal to introduce negative voting to reject all the candidates if voters found them unsuitable was first discussed by the Law Commission in its 170th Report in 1999. This was a part of “alternative method of election” where candidates would only be declared elected if they obtained (50%+1) of all the valid votes cast. However, the Law Commission cited practical difficulties in implementing such idea of negative voting. The Election Commission of India (ECI) supported similar introduction of a negative vote, first in 2001, under James Lyngdoh as the Chief Election Commissioner (CEC), and then in 2004 under T.S. Krishnamurthy, in its proposed electoral reforms report. However, the ECI was concerned with certain aspects of secrecy for those who wanted to abstain from voting. Further, the Background Paper on Electoral Reforms prepared by the Legislative Department of the Law Ministry in 2010 also favoured the introduction of negative voting. However, considering government’s refusal to entertain the idea of NOTA at a substantial level, the People’s Union for Civil Liberties filed a Public Interest Litigation (PIL) on the same issue in 2004.       

Supreme Court’s decision on NOTA

On the issue of right to reject, the Court was primarily concerned with the issue of secrecy of voting as it is recognised an international principle. The premise of the Supreme Court’s decision was that secrecy of voting is crucial to maintaining the purity of the electoral system. As per the Court, guaranteeing of secrecy during casting of vote would increase public participation in the electoral process, which is fundamental for strengthening democracy. The Court held that NOTA would empower the people, thereby accelerating effective political participation, since people could abstain and register their discontent (with the low quality of candidates) without fear of reprisal. Simultaneously, it would foster the purity of the election process by eventually compelling parties to field better candidates, thereby improving the current situation. The Court also relied on international principles governing the right to secrecy as an integral part of voting and free elections under Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Right (ICCPR). The Court held that democracy is about political choice of a citizen and hence eligible voters should have the option of rejecting candidates who were standing for elections in their constituency as per their choice. So, the Court directed the ECI to include the option of NOTA in all Electronic Voting Machines. Thus, after Supreme Court’s judgment in PUCL v. Union of India in 2013, the ECI has allowed NOTA as an option in the election process.    

Is NOTA equivalent to Right to Reject? 

NOTA as an option in its present form is simply a protest vote without any electoral weight or value and does not carry the gravity that amounts to rejection of a candidate. As per former CEC S.Y. Qureshi, NOTA is not the same as the right to reject. He gives an example where even if there are 99 votes cast in favour of NOTA, out of a total 100, the candidate who got only vote will be declared the winner, for having obtained the most number of valid votes. As per notification of the Election Commission, if a situation arises where the number of NOTA votes exceeds the number of votes polled by any of the candidates, the candidate with the highest number of votes is declared as winner irrespective of number of votes cast for NOTA. Thus, the votes cast for NOTA as of now do not have any electoral significance. Also, a vote cast for NOTA does not amount to Right to Reject for any candidate. There have been demands from different sections of the society to give electoral value to the votes cast for NOTA. This seems bit uncertain as without the concept of Right to Reject in an election, votes cast for NOTA will not have much electoral significance. Moreover, a right to reject must be accompanied by some alternative because Parliamentary Democracy thrives on election of candidates and not on their rejection. Law Commission in its 255th Report has also rejected the concept of extending NOTA as the right to reject and has suggested introducing the concept of right to reject at a future date.  

Law Commission Opinion on NOTA 

Law Commission in its Report has mentioned that the motivating factor behind the right to reject is good governance which can be successfully achieved even without introducing right to reject through NOTA. Efforts should instead be made to implement the already existing provisions on decriminalising politics and increasing political awareness; and introduce other provisions such as inner party transparency and election finance reform. Thus, stressing the alternatives for a clean and transparent election free of money and muscle power, the Commission in its 255th Report has rejected the idea of extension of the NOTA principle to introduce a right to reject the candidate and invalidate the election in cases where a majority of the votes have been polled in favour of the NOTA option.     

Some statistics on NOTA

Association for Democratic Reforms in collaboration with National Election Watch have analysed the number of votes secured by NOTA in various elections since 2013.  Let us go through some of the statistics on NOTA :

ê  In 2014, NOTA was first introduced in Lok Sabha elections. Overall, NOTA secured 60,02,942 (1.08%) votes. Among the NOTA votes in Lok Sabha elections, the highest number of votes i.e. 46,559 was in Nilgris constituency in Tamil Nadu. The lowest number of votes NOTA secured i.e. 123 votes was in Lakshadweep.

ê  Among State Assemblies elections, NOTA has secured the highest percentage of votes in 2015, i.e. 2.08% (9,83,176 votes) in 2 State Assemblies elections of Bihar (9,47,279 votes), NCT Delhi (35,897 votes).

ê  Since its implementation in 2013, NOTA has secured the highest number of votes in Bihar (9,47,279 votes) State Assembly elections, 2015 and secured the lowest number of votes in Mizoram (3,810 votes) State Assembly elections, 2013.

ê  Red Alert Constituencies are those which have 3 or more candidates with criminal cases contesting elections. NOTA has secured 22,94,904 votes (22.94 lakhs) in the red alert constituencies in State Assembly elections since 2013.

ê  NOTA has secured the highest percentage of votes in red alert constituencies of Chhattisgarh. NOTA secured 2.68% votes (39,896) in 10 red alert constituencies of Chhattisgarh.    

ê  NOTA secured the highest percentage of vote share i.e.  3.06% in Chhattisgarh State Assembly, 2013.  NOTA secured the lowest percentage of vote share i.e. 0.40% in Delhi State Assembly elections, 2015.  

Conclusion : Giving NOTA a chance

Votes cast for NOTA need to be recognised despite its electoral non-significance. But to do so, NOTA has to be declared as a “person” under the eyes of law. This will at least give NOTA some credence and voters a sense of pride for their votes cast. Some of these utopian ideas have been implemented by the State Election Commission of Haryana. The State Election Commission of Haryana in compliance with the Supreme Court’s directive in PUCL v Union of India, has issued an order regarding application of NOTA option in the local body elections. As per the notification, NOTA shall be treated as a ‘Fictional Electoral Candidate’ while declaring the election results. So in case, a contesting candidate and the “Fictional Electoral Candidate’ i.e. NOTA receive highest equal number valid votes then the contesting candidate (not NOTA) shall be declared as elected. However, if in any election, all the contesting candidates individually receive lesser votes than the ‘Fictional Electoral Candidate’ i.e. NOTA, then none of the contesting candidates will be declared as elected and re-election shall be held for the seat. Further all such contesting candidates who secured less votes than NOTA shall not be eligible to re-file the nomination/contest the re-election. In re-election, if NOTA again gets highest votes then further election will not be conducted and contesting candidate with highest votes (excluding NOTA) shall be declared as elected.    

As we can see, the States have started experimenting with the idea of giving NOTA a chance. This is an important step taken by the State Election Commission of Haryana and will prove to be a beacon of hope for other States as well as for the Centre. The idea of NOTA has been reserved for a future date by the Law Commission of India but the time to seize the opportunity by giving NOTA a chance begins no later than the present times to bring a social and political change with a hope for a better, cleaner and more participative democratic process.

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