by Vasujith Ram
The Supreme Court in PUCL v UOI held that the EVMs must now include the NOTA (None Of The Above) button as an extension of secrecy for an eligible voter’s right not to vote. Since the petition was a Writ Petition under Article 32, the Court had to judge its maintainability, as it was contended that Right to Vote is considered a statutory right. The Court held that although Right to vote is a statutory right, the decision taken by the voter is a facet of Freedom of Expression under Art. 19(1)(a). Fundamental Right under 19(1)(a) and statutory right under S. 79 of Representation of People Act is violated if right not to vote is denied. Thus the Court held that the Writ Petition is maintainable.
The Court held that Rule 49-O and Form 17-A, which if read together allow secrecy to be violated, is ultra vires Art. 19 and S. 79(d) & 128 of the RPA. Additionally, accepting the EC’s suggestion, the Court directed the NOTA button to be included in the EVMs.
The media has thrown up several terms in describing the judgment, one of them being ‘right to reject’. The ‘right to reject’ as portrayed by the media means only neutral voting which means such votes will not be counted in deciding the winning candidate. Even if 15 voters in an electorate of 20 persons press the NOTA button, the winning candidate will be decided by who gets the maximum of the remaining 5 votes. However, the term ‘right to reject’ has a different connotation altogether in other countries. It means rejecting all the candidates standing for election resulting in fresh elections.
As has been clarified by SY Quareshi (former CEC) in the Economic Times (ET) here, the judgment does not actually recognize this form of right to reject. In the ET article, Quareshi argues that since right to reject will mean that a re-election will have to take place in certain cases (if the rejection option receives more than 50% of the votes or if the number of votes is greater than the highest number of votes for any candidate), it is not a desirable option, primarily noting the wastage/lack of resources and the rights of the contestants.
It is surprising however that the right to reject (as is understood in other countries) has not yet been recognized. Suppose a person has the statutory right to vote. While exercising his freedom of expression under 19(1)(a) at the time of casting of the vote, the person after looking at the list of candidates wants to actively reject all the candidates for any reason. In other words, he does not want any of the candidates to represent him. What then? The Supreme Court in its decision affirmed its own decision in Lily Thomas v Speaker, Lok Sabha where it was held that “voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question […] right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well”. Since it is an expression of will/opinion and a person can opt to go against the motion or resolution, can he/she not reject all the candidates? And if a majority of the electorate decide similarly, shouldn’t elections be countermanded?
SY Quareshi’s arguments are based on efficiency and this has kick-started the classic debate of efficiency and equity. With regard to the elections itself, Dworkin (known critic of strict wealth maximisation and proponent of equity/justice) would go with the right to reject even at the ‘cost’ of re-elections, whereas scholars like Posner (proponent of the utlitarian-wealth maximisation theory) would opt for efficiency and cry foul if the re-election system is invoked. Although he makes valid and practical arguments, there may be situations when right to reject may be a better option than the existing system. What about a perfectly valid situation, when all the candidates have criminal antecedents and are known for corrupt practices, yet are contesting elections? Can’t the electorate actually reject the candidate? A re-election may even mean that a less corrupt candidate with better credential represents the constituency, making better usage of resources in the long run.
For example, Colombia allows the NOTA option (“en blanco”) and if en blanco wins, re-elections are held with fresh candidates. In the town of Bello, there was only candidate who ultimately stood for elections after candidature of the primary rival was revoked and the candidature of other contestants was withdrawn to support the only remaining candidate. The only candidate got 37.19% votes whereas 56.7% voted en blanco. This led to a re-elections with fresh candidates.
Another example is the 1989 elections in Poland, which led to the fall of Communism in Poland. In the elections, the Communists allowed elections but ensured that many of their candidates ran unopposed. The Communists were still defeated as voters were able to vote against the only candidate by crossing out their names. Even the Prime Minister was defeated, and the legendary Solidarity party led by the great Lech Walesa emerged victorious.
With reference to re-elections, there may be several problems like election fatigue, requirement of resources, etc. This could be solved by just keeping a higher threshold for re-elections rather than the widely discussed 50% or high number of votes than any of the candidates. A higher threshold will ensure that necessary and genuine cases do result in re-elections, rather than rejecting the idea of re-election in toto because of ancillary problems.
With regard to the disqualification of the candidates, Quareshi argues that the candidates right to contest will be violated. This essentially means the former CEC is weighing the right to contest vis-a-vis the electorate’s right to vote and freedom of expression! The former must not be given greater weight over the latter. A suitable solution must be worked out. For example, a minimum percentage of votes may enable the candidate to re-contest. The political parties are unlikely to field rejected candidates in any case.
Since we follow the first pass the post system rule in India, countermanding of elections on voters’ expressing their disapproval will require an amendment in law. The Supreme Court cannot in a writ of mandamus direct the government to do this. Such an initiative has to be shown by the executive and reciprocated by the legislature. However, what is encouraging is the fact that this judgment would lead to very strong demands for the ‘right to reject’ option as is available in other countries.
Another point to note that has escaped the attention of debates is that the judgment also paves way for compulsory turnout/voting in the future. By allowing for the NOTA option, and a possibility of right to reject, the arguments for compulsory turnout/voting will only be stronger.
Update: Senior BJP leader LK Advani in his blog has advocated for compulsory voting in light of the NOTA judgment.
Update: Former CEC N. Gopalaswami in his op-ed in The Hindu (“NOTA small matter, this) has opined that the right of negative voting should extend to a right to reject all candidates.
Update: An extension of the arguments can be found here (Samyak Sibasish and Vasujith Ram, “Case for the right to reject”, The Statesman, October 31).
(Vasujith Ram is a second year student of NUJS, Kolkata and an Associate Editor at JILS)