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: The Supreme Court and the Delhi High Court in Subramanian Swamy v Election Commission (here and here) have held that finances cannot be a deterrent to free and fair elections.
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)
A very brilliant take on the issue. However a question arises regarding your proposed solution of increasing the threshold..
When you propose to increase the threshold for re-elections to more than 50%, don’t you think that defeats the purpose of the change, as well? For say, if you keep the threshold at 70%. Of course, there are going to be many constituencies where between 50%-70% of the people who have turned up at the polling booths have opted for the NOTA option (why I think so, I have specified in the next paragraph). 50%+ has always been termed as a “simple majority” and has been considered to the classical optimum required to make or reject a decision. Don’t you think by altering this to say 70%, we are denying the chance of re-elections to many such constituencies? Wouldn’t that be socially unfair?
And in any case, if we decide to stick to the 50% formula, a ,lot of economic problems arise, as ex-CEC SY Quraishi has noted and you have aptly mentioned. Of course, people’s right to elect or reject candidates is supreme. However here, we are talking of India, the second largest democracy in the world, not a Poland or a Columbia. An India where elections happen at the Panchayat level, municipal level, state level and national level. Considering the huge amount of expenses that are incurred when elections happen, we need to examine how badly it affects the public exchequer. Because considering the voters’ disenchantment with the present day political class due to a multiple issues ranging from inefficiency, corruption, bad governance and lack of political will, there is a good chance that many constituencies will return figures of 50%+ opting for NOTA. In your scenario, that will lead to the conduct of general elections again. It might also result in re-re-elections, which will spell a financial doom for the public exchequer and a gross political chaos across the country.
The State of Nevada in US practices this electoral principle which allows a candidate with 6% votes of the entire count be elected as councilor, even if 90% of the voters give their nod for NOTA. I am not saying that this augurs well for India. This will have disastrous consequences, of course. But somewhere within these two, we need to figure out something that will not grossly undermine voters’ right to elect/reject and simultaneously not pose an economic or a political problem. I don’t think the solution is as simple as increasing the threshold for re-elections as it seems to be socially unfair. I also think it will be foolish to blatantly attend to the supremacy of the right to elect/reject a candidate without carefully assessing the gross economic problem of re-elections and election fatigue looming at large.
I think a lot of discussion needs to go into what should be the optimal solution to this problem. But no denying that this judgement along with a few other recent ones like Lily Thomas and Jan Chaukidar goes the distance in reconceptualising judicial activism as far as cleansing of the Indian political system is concerned. I hope these are the first few of many to come.
Thank you Samyak!
Well, 50% need not always be the “optimum required to make or reject a decision” – our Constitutional Amendments require a two thirds majority. I was not suggesting an arbitrary figure like 70%!
Regarding your concerns about the possibility of financial doom to the public exchequer, the Supreme Court and the Delhi High Court in the VVPAT judgment have said that finances should be no deterrent to free and fair elections.
Yes, but the Constitutional Amendments are directed at the most fundamental source of our law, so the utmost degree of legislative will is necessary to validate changing core principles of our legal system. Do election fatigue and requirement of resources really warrant this same ‘burden-of-proof’ for the right to reject?
Brilliant post.