New Delhi, Sept. 27: The Supreme Court today ruled that people must be allowed to cast a “none of the above” vote, saying the option was a “dire need” to force political parties to field “candidates with clean records”.
The court set no deadline but sources in the Election Commission, which has long been demanding the introduction of negative voting, said they would try to make the option available to voters during the year-end Assembly elections in five states.
The key rulings made by the three-judge bench on a nine-year-old petition and their implications:
The court said the voter has a fundamental right to have her rejection of all the candidates recorded officially without having to reveal her identity.
Therefore, the court set aside the current rules that allow a voter to cancel her vote at the cost of revealing her identity.
With this, a person who wants to refrain from voting on a matter of principle and not because she dislikes the candidates — and doesn’t want to abstain lest someone else cast her vote — has lost the option to cancel her vote and make a statement. (See chart)
The bench directed the Election Commission to provide a “none of the above” panel in electronic voting machines “in a phased manner or at a time” and ordered the Centre “to provide necessary help” to implement the judgment.
The court asked the Election Commission to undertake awareness programmes on negative voting.
The bench of Chief Justice P. Sathasivam and Justices Ranjana Prakash Desai and Ranjan Gogoi made veiled allusions to the criminalisation of politics.
The negative-vote option “gives the voter the right to express his disapproval with the kind of candidates being put up” and will “compel the political parties to nominate a sound candidate”, the judgment said.
“When the political parties realise that a large number of people are expressing their disapproval with the candidates… gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
Right to secrecy
The judgment set aside as unconstitutional the Rules 41(2), 41(3) and 49-O of the Conduct of Election Rules, 1961, which mandate that:
(a) If a voter chooses not to vote after entering the polling booth, the presiding officer must record this against her signature or thumb impression (thus forcing her to reveal her identity).
(b) If a voter obtains a ballot paper and then decides not to use it, she must return it to the presiding officer who will mark it “Returned: cancelled” — which means it will not be counted.
The court today ruled that secrecy was essential to “free and fair elections” and that forcing a voter to reveal her identity violated her fundamental rights to free speech under Article 19(1)(a) of the Constitution and to liberty under Article 21.
Voting is a “facet of the right of expression” and “therefore, a part of Rule 49-O… which allows the secrecy to be violated, is arbitrary, unreasonable and violative of Article 19 and is also ultra vires (beyond one’s legal power or authority,” the bench said.
Why not abstain
The court explained why casting a negative vote was different from staying at home (apart from the matter of ensuring no one casts a false vote in the voter’s name).
Abstaining, the court said, is “not an ideal option for a conscientious and responsible citizen”.
“If introducing a NOTA (none of the above) button can increase the participation of (voters in a) democracy, then… nothing should stop the same. Voters’ participation in the election is indeed participation in democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign for a growing democracy like India,” the judgment said.
The bench said that in the existing system, a dissatisfied voter ordinarily does not turn up at the booth, giving unscrupulous people a chance to impersonate her and cast her vote.
Therefore, the court said, the negative-vote option will empower voters and “foster the purity of the electoral process and also fulfil one of its objectives, namely, wide participation of people”.
An Election Commission statement said it would implement the order “as expeditiously as possible”.
Legal experts said the government would not have much elbowroom to delay the move since the poll panel, armed with the court order, can now mount pressure on it.
Some have construed a remark in the judgment about the order being passed “at a time when electioneering is in full swing” as a nudge to implement it by next year’s general election.
The poll panel said the phrase “none of the above” would be printed on a separate panel below the last candidate’s name. It added that it would compile the number of people who cast a negative vote and make it public when the results are declared.
Who said what
The judgment came on a public interest litigation moved in 2004 by the People’s Union For Civil Liberties, which challenged rules 41(2) & (3) and 49-O and demanded the option of a negative vote.
The Election Commission supported the petitioner’s stand. It told the court it had made a recommendation to the Union law ministry and the government in 2001 to allow negative voting but no action had yet been taken.
The Centre had opposed the option of a negative vote, arguing the current rules that force a voter to reveal her identity while cancelling her vote do not violate her fundamental rights.
Points to ponder
• The majority of voters in a constituency cast a negative vote?
• All voters in a constituency cast a negative vote?
Election Commission counsel Meenakshi Arora said she had no answer and would look to the Supreme Court for a solution “if such a situation arises”.
Senior lawyer Sanjay Parekh said that under current election laws,
the candidate with the highest votes would still be elected if the majority vote was negative, though this would go against the principle that the majority should prevail.
“So, either the law has to be amended, or the negative voters might move court to have the election countermanded, and the court will decide.”
The right to cancel your vote. At present, a voter can ask the presiding officer to cancel her vote, thus ensuring that no one else can vote in her place. This provision has been set aside because it forces the voter to reveal her identity