By Arpit Agrawal :
“None of the above”, or NOTA for short, also known as “against all” or a “scratch” vote, is a ballot option, designed to allow the voter to indicate disapproval of the candidates in a voting system. It is based on the principle that consent requires the ability to withhold consent in an election.
Countries that include “None of the Above” on ballots as standard procedure include India (“None of the above”), Indonesia (empty box), Greece (white), the U.S. state of Nevada (None of These Candidates), Ukraine (“against all”), Belarus, Spain (voto en blanco, “white vote”), Colombia (voto en blanco) and Bangladesh (“No Vote”). Russia had such an option on its ballots (“against all”) until it was abolished in 2006. Pakistan introduced this option on ballot papers for the 2013 Pakistan elections, but the Election Commission of Pakistan later rejected it. Bulgaria introduced a ‘none of the above’ option in 2016 the latest nation to do so.
The Election Commission of India recommended in 2001 that the law should be amended to specifically provide for negative/neutral voting and recommended to amend the Conduct of Election Rules, 1961 by adding a provision that in the ballot paper, there shall be a column “none of the above”, to enable a voter to reject all the candidates.
Before NOTA the right not to vote was already available under the Conduct of Election Rules, 1961 but, such option was complicated and its use was therefore difficult and often not exercised.
‘Right not to vote’ had been recognized by Rule 41 (2) and Rule 49 (O) of the Conduct of Election Rules, 1961.
Rule 41 (2) provides that ‘if an elector after obtaining a ballot paper decides not to use it, he shall return it to the presiding officer,.
It is quite evident that this provision is applicable only to the traditional voting system using the ballot papers.
Rule 49 (O) provides that: ‘If an elector, after his electoral roll number has been duly entered in the register of voters in form 17A and has put his signature or thumb impression thereon decides not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and signature or thumb impression of the elector shall be obtained against such remark’.
The constitutional validity of these provisions had been challenged before the Supreme Court in the petition filed by the People’s Union for Civil Liberties (PUCL) vs Union Of India (2013) 10 SCC 1 on the ground that they were inconsistent with Section 128 of the Representation of People Act, 1951, Rules 39 and 49(M) (1)3 of the Conduct of Election Rules, 1961 which protect the secrecy of voting.
128. of the Representation of People Act, 1951
Maintenance of secrecy of voting-
(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not communicate to any person any information calculated to violate such secrecy:
Rule 39. Of Conduct of Election Rules
Maintenance of secrecy of voting by electors within polling station and voting procedure- (1) Every elector to whom a ballot paper has been issued under Rule 38 or under any other provision of these rules, shall maintain secrecy of voting.
49M. of the Conduct of Election Rules
Maintenance of secrecy of voting by electors within polling station and voting procedure—(1) Every elector who has been permitted to vote under Rule 49L shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.
In PUCL, the Supreme court of India ruled that the right to register a “none of the above” vote in elections should apply, while ordering the Election Commission to provide a button for the same in the electronic voting machines.
The ECI introduced a particular symbol for ‘None of the Above’ option to allow the voters to exercise NOTA. This symbol appears in the last panel on all Electronic Voting Machines (EVMs).
Constitutional interpretation of the “NOTA” judgment is based on Lily Thomas vs. Speaker, Lok Sabha, (1993)4 SCC 234:
The SC stated 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 and that “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”.
The rationale behind the PUCL judgement:
It was contended in the PUCL case that the Rules 41 (2) and 49(O) were violative of Articles 14, 19(1) (a) and 21 of the Constitution.
The two main key components that came out of the Supreme Court judgment are:
· Right to vote also includes a right not to vote i.e right to reject.
· Right to secrecy is an integral part of a free and fair election.
While maintaining that right to vote was a statutory right, the Supreme Court held that, an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14.
It was also held that not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21, the right to liberty.
Voting is a formal expression of will or opinion in an electoral process. Right to reject implies that a voter while voting has every right not to opt for any of the candidates during an election. Such a right implies a choice to remain neutral.
This may happen when a voter feels that none of the candidate in a candidacy deserves to be elected. Right to reject has its genus in freedom of speech and expression.
It is a central right of an elector to cast his vote without fear of reprisal, duress or coercion as per Article 21 of the Indian Constitution.
Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections.
Right to secrecy has also been internationally recognized. Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights deals with the “Right to secrecy”.
As per Rules 41(2) and (3), if an elector decides not to vote, he has to return the same to the presiding officer who in turns keeps it separately. Therefore, the secrecy of an elector who has decided not to cast his vote against any of the candidates is severely comprised which in turn is in direct contravention of Article 14.
Presently, Rules 41(2) & (3) and 49-O of the Rules stand ultra vires Section 128 of the Representation of People’s Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.