Tuesday, October 29, 2013

The Right to Reject: A Major Step Towards Cleansing Public Life

Dr. A Surya Prakash, 
Distinguished Fellow, VIF

Voters in the five states going to polls this November-December viz Madhya Pradesh, Chattisgarh, Rajasthan, Delhi and Mizoram, will, for the first time have the right to press the NOTA (None Of The Above) button on their voting machines if they are disappointed with all the candidates in the fray in their constituencies.

The Election Commission has announced that it will provide voters the NOTA option following the recent Supreme Court verdict on the issue. This will constitute a major improvement on the situation that prevailed prior to the apex court verdict. Earlier, voters had the right not to vote after registering their presence in a polling booth. However, under the Conduct of Election Rules, their decision would be recorded in a register. Thus, the election law did not ensure secrecy for the voter who preferred not to vote. The apex court’s verdict will now ensure secrecy. Candidates and political parties will not know who all pressed the NOTA button in the voting machines. The court has hoped that this will have a salutary effect on the process of selection of candidates by political parties.

This judgement of the Supreme Court has been welcomed by electors and opinion makers across the country. Coming as it does in the wake of the court’s historic judgement last July to bar criminals from entering legislative chambers, this judgement is seen as yet another major step towards cleansing public life in the country.

In its judgement, the three-judge bench headed by the Chief Justice Mr. P.Sathasivam said that giving the voter the right not to vote for any candidate while protecting his right of secrecy was “extremely important”. When voters got the right to reject, it would bring about “systemic change”, force political parties to field persons of integrity in elections and foster the purity of the electoral process. It said the absence of the right to cast the negative vote would defeat the freedom of expression and right to liberty. The judgement comes in the wake of a sustained campaign by citizens’ groups for the NOTA option in ballot papers and voting machines. The court has directed the Election Commission to make necessary changes in the Electronic Voting Machines and ballot papers to give voters the power to stamp NOTA.

The timing of this judgement could not have been better. Despite mounting criticism of the quality of persons chosen by political parties to contest elections, parties seemed unwilling to clean up their act. The only criteria adopted by political parties for dispensing tickets is “winnability”, meaning that only those with money power and muscle power stood a chance of securing a ticket.

While every political party must take the blame for choosing less-desirable persons as candidates and for the growing frustration among people regarding the democratic system, the ruling United Progressive Alliance government at the Centre must take the blame for behaving in the most irresponsible manner in this regard. The Supreme Court decided last July to strike down Section 8 (4) of the Representation of People (RP) Act, 1951 which enabled criminals to continue their tenures in Parliament and state assemblies if they filed appeals against their conviction in a higher court. Though the court did not bar politicians who are charge-sheeted from contesting polls, it declared that a person convicted and sentenced in heinous cases, should be kept out of legislature, even if his appeal is pending in a higher court. The court also barred persons in jail from contesting elections because such persons lose the right to vote. We all know the desperate measures the Union Government took to try and protect criminal-politicians, including introduction of bills in Parliament and drafting an ordinance thereafter. When these decisions caused public revulsion, the government backtracked.

The court’s order also comes in the wake of valuable research data put out by the Association of Democratic Rights (ADR) and National Election Watch on the quality of persons who enter our legislative bodies. These organizations found that as many as 30 per cent of the sitting MPs and MLAs in the country (1460 out of 4807 MPs and MLAs) had criminal cases against them. Out of them, as many as 688 (14%) sitting MPs and MLAs have declared serious criminal cases against themselves. One realizes the value of Supreme Court’s judgements when one sees these figures, which would put politicial leaders in most countries, except India, to shame. Since one-third of the elected representatives have criminal records, it is only fair that voters have the right to reject and that is what the court has granted them in the latest order.

The Election Commission is already considering alterations to the EVMs to provide for a paper trail that gives proof of voting to every voter. This demand came about because of allegations that EVMs could be rigged. In any case the commission should be happy with the apex court’s judgement because the Commission had itself proposed NOTA way back in 2001 and reiterated it in the Chief Election Commissioner Mr.T.S.Krishna Murthy’s recommendation to the Prime Minister in 2004. In that letter, the CEC said “Although, Rule 49-O of the Conduct of Election Rules, 1961 provides that an elector may refuse to vote after he has been identified and necessary entries made in the Register of Electors and the marked copy of the electoral roll, the secrecy of voting is not protected here inasmuch as the polling officials and the polling agents in the polling station get to know about the decision of such a voter”. He therefore recommended that the Conduct of Election Rules be Amended. The government however did not act on this recommendation, prompting this direction from the Supreme Court.

The NOTA right is basically the right to cast a negative vote. However, this is not the complete solution, because even if a majority of the voters press this button, the election process will not be void. The Election Commission will count the remaining votes cast and declare the candidate who got the highest votes as the winner. Therefore, a bigger battle may lie ahead in order to find the ultimate solution to the problem posed by the quality of persons entering the electoral fray.


Long years ago, the former Vice-President Mr.Krishan Kant had demanded that such a provision be made in the ballot paper to enable electors to exercise their right to reject candidates in an election. The Law Commission too had supported this proposal. But the political system has become so corrupt and immoral that it refuses to consider anything other than “winnability”. It has been dismissive of all such proposals which aim to cleanse the political process as impractical or as proposals coming from individuals who are disconnected from the reality of electoral politics. The citizens have no option but to knock on the doors of the Supreme Court and the apex court, which is aware of the deteriorating environment, has stepped in to protect the right of citizens to better representation in democratic bodies.  

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