As NOTA becomes popular with voters, a look back at the landmark SC decision to allow for the option

With a view to bring “purity” in elections, the Supreme Court in a landmark judgment on September 27, 2013 allowed voters to cast negative votes and reject all candidates as unworthy of being elected. The voter could press the NOTA button on the EVM, it said, directing the Election Commission to provide this option on EVMs and ballot papers in a phased manner and also asked the Centre to give its support to make this happen.

The apex court said that the right to vote and the right to say “none of the above” both constitute a basic right of the voters. “When a large number of voters will press NOTA button, it will force political parties to choose better candidates. Negative voting would lead to systemic change in polls,” it said, observing that the implementation of the option was akin to the “abstain” option given to MPs and MLAs during voting in the Parliament and state assemblies. If the right to vote is a statutory right, then the right to reject candidates is a fundamental right to speech and expression under the Constitution, it held.

“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,” said a bench comprising Chief Justice of India (CJI) P Sathasivam and justices Ranjana Desai and Ranjan Gogoi.

In the written 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.”

In a fifty-page judgment, the bench stated that negative voting would foster purity and vibrancy of elections and ensure wide participation as people who are unsatisfied with the candidates in the fray would also turn up to express their opinion, rejecting unscrupulous elements and impersonators.

The right to reject candidates in elections is a part of the fundamental right to freedom of speech and expression granted by the Constitution to Indian citizens; democracy is all about choice, and the significance of the right of citizens to cast negative voting is massive, it said. It said that the secrecy of votes cast under the NOTA option must be maintained by the Election Commission. However, the judgment did not delve into a situation where the votes cast under this option outnumber the votes received by the candidates. The path- breaking verdict was part of a series of judgments passed by the apex court to instate electoral reforms, meant to further empower the voters in exercising their franchise and help cleanse the political system of the country.

For the first time, the principle of the right to reject was recognised. A quality change in the boisterous Indian elections was brought in. The ballot paper now has the option of “none of the above” or in general parlance NOTA. It was first introduced in the general elections of 2014 and subsequently in the assembly elections. The idea was to strengthen the democracy further.

Significantly, the judgment gave dignity to the right to vote. By declaring that the right to vote is essentially a right to free expression, the judgment brought this under the purview of fundamental rights. The court recognised that the right to vote included the right not to vote, thereby underlining equal opportunity for all.

Senior Supreme Court advocate Dr Abhishek Singhvi, MP, former chairman, Parliamentary Standing Committee on Law and Justice, and national spokesperson, Congress, said:

“The court also pressed into service two less complicated principles. One was the need to operationalise freedom of expression and its manifestation, which would otherwise be violated in the absence of NOTA. Secondly, the court noted that within Parliament and all state legislatures, there is the option not only for the binary “yes” and “no” but also a specific option to press the abstain button. A similar option, the court said, must be given to the voter who elects such legislators, if the latter have this option within legislatures! Interestingly, the court not only held the absence of such an option to be unconstitutional but affirmatively directed its specific inclusion in the balloting system.”

Talking of its larger implication, senior advocate Mohan Parasaran, who is a former solicitor general of India, said:

“This judgment is perhaps another stepping stone towards the development of democracy and the democratic process in India. The option of exercising the vote for NOTA is available in a few countries. Fielding candidates in an election has always been subject to party politics, nepotism and the whims of those who are in power, as a result of which deserving candidates tend to lose out. This resulted in the voter being forced to vote for a candidate as a matter of last resort rather than as a matter of first choice.”

A vibrant democracy gives voters an opportunity to press the NOTA button. This option was expected to force political parties to nominate the best candidates. One may point out that this has not significantly altered the situation as candidates with criminal antecedents continue to be elected. But the NOTA option in the long run will, to a great extent, help weed out the unwanted.

Gujarat chief minister Narendra Modi, who is now the prime minister, and veteran BJP leader LK Advani had welcomed the NOTA provision then. They had also asked for another electoral reform –to make voting mandatory.

“I hold, therefore, that a negative vote would become really meaningful if it is accompanied also by the introduction of mandatory voting,” Advani wrote in a blog.

The NOTA option was first used in the 2013 assembly elections held in four states – Chhattisgarh, Mizoram, Rajasthan and Madhya Pradesh and the former Union Territory, Delhi. More than 15 lakh people exercised the option in the state polls. Around 50,000 voters opted for NOTA in Delhi; 3.56 lakh in Chhattisgarh; 5.9 lakh in Madhya Pradesh; and 5.67 lakh in Rajasthan.

The number of voters who pressed the NOTA button in the Uttar Pradesh assembly elections held in March 2017 was unprecedented and an indicator of the lack of faith in and anger against the political parties and their candidates. In twelve constituencies of the state, 7,57,643 votes were polled. NOTA accounted for about 0.9 per cent of the total votes polled. In each of these rural constituencies, the NOTA poll was bigger than the margin of victory.

In the assembly constituency of Domariyaganj, the victory margin was only 171 votes, while NOTA polled 1611 votes. The Mohanlalganj constituency recorded a victory margin of only 530 votes and the NOTA poll was 3471. Likewise in Dudhi, NOTA polled 8522 votes while the victory margin between the winner and runner-up was only 1085 votes. The victory margin in the Mant assembly constituency was 432 votes, while NOTA polled 1253 votes, which was almost three times the victory margin. In Matera too, the NOTA poll was 2717 votes and the margin of victory was only 1595 votes. In the Meerapur constituency, the victory margin was only 193 votes and NOTA polled 1090 votes. In Mubarakpur, NOTA polled 1628 votes and the margin of victory was only 688 votes.

Therefore, it can be affirmed that the NOTA option will play a crucial role in forcing political parties to shun candidates with criminal or immoral backgrounds.

The very intent of introducing this option is empowering the voter to reject all candidates if they do not like any of them. The political parties would be left with no option other than to field clean candidates.

Consider these events. 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. One doesn’t need more proof of voter empowerment.

Some political experts hold the view that the NOTA option is essentially a waste of a vote since it makes no impact in the electoral outcome in any election. They say that since it is merely cosmetic in nature, it can only work when coupled with the “right to recall” option. The right to recall is one of the facets of direct democracy that refers to a process whereby an electorate is able to recall an elected representative for underperformance, corruption or mismanagement while still in office, by filing a petition that triggers a re-election, usually after a particular percentage of people sign the petition. The said political experts believe that granting the electorate the right to recall will instil fear in candidates to do well in office. In addition, it will act as a signifier of public displeasure.

The demand for the right to recall gained momentum when in 2011 reformists such as Anna Hazare made a strong case for it. The practice of the right to recall (also called the “recall referendum” or “representative recall”) exists in Switzerland, the United States, the United Kingdom, Canada and Venezuela. Hazare, too, felt that the grant of such a right would curb corruption and enable voters to reject an incompetent person. By providing a tool to dissatisfied citizens to rectify their mistake, the right to recall could help deter underperformance, mismanagement, corruption and apathy on the candidate’s part.

But the demand was rejected by other political analysts, who felt that the recall is fraught with serious consequences and would only add to the instability of governments by empowering not those who win elections but those who lose. The latter can, in theory, bring about a recall at the drop of a hat. They felt that the elected representatives would be under constant pressure to work the way people want them to and deter them from taking strong decisions.

At present, the right to recall option is prescribed for local elections in Chhattisgarh, Madhya Pradesh, Rajasthan and Maharashtra and there are demands for introducing this system at the state and parliamentary level. However, its proponents have not detailed the governing procedural framework, namely the percentage of electors needed to sign the petition; the grounds for initiating a recall, or whether any grounds are necessary; or the minimum period, if any, after which a recall can be initiated. Neither have they specified which authority would be competent to decide whether the recall may be commenced, based on the satisfaction of certain preconditions.

Excerpted with permission from The Dramatic Decade: Landmark Cases of Modern India, Indu Bhan, Penguin Random House India.