Describing the right to abstain from voting as essential for “free and fair elections”, the apex court directed the Election Commission to take the necessary steps and the Union government to “provide necessary help”.  (Describing the right to abstain from voting as essential for “free and fair elections”, the apex court directed the Election Commission to take the necessary steps and the Union government to “provide necessary help”. )
Describing the right to abstain from voting as essential for “free and fair elections”, the apex court directed the Election Commission to take the necessary steps and the Union government to “provide necessary help”.
(Describing the right to abstain from voting as essential for “free and fair elections”, the apex court directed the Election Commission to take the necessary steps and the Union government to “provide necessary help”. )

Voters have a new option: reject all candidates

Supreme Court orders Election Commission to set up ‘none of the above’ button in electronic voting machines

New Delhi: In what could potentially shake up voter-politician dynamics, the Supreme Court on Friday cleared the decks for the Election Commission (EC) to allow voters the option of rejecting all candidates.

The move could force political parties to scrutinize candidates while reviving the recent jousting between politicians and judges, with the latter accused of judicial overreach—all the more since the apex court has issued several orders recently that impact the political process in the country.

Effectively, the voter has now been allowed the right to abstain: In the landmark order, the Supreme Court directed the EC to introduce a ‘none of the above’ button in electronic voting machines (EVMs).

Chief justice of India P. Sathasivam said such a step “is in the interest of democracy" as it will send out a “signal to political parties and candidates what voters think about them".

“Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21, i.e., the right to liberty," said the ruling. “Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice," it said.

The apex court, ruling on a petition by the People’s Union for Civil Liberties seeking to allow voters the right to express their dissatisfaction through EVMs, noted that the practice of electronic abstention is followed in at least 13 other countries.

Describing the right to abstain from voting as essential for “free and fair elections", the court directed the EC to take the necessary steps and the Union government to “provide necessary help".

Inside the court, the lawyer for the EC supported the move, and the commission later clarified that the ruling will not alter the electoral outcome in a constituency—the winner will still be the one with the most votes.

Nonetheless, the ruling has the potential to reduce the vote share of all candidates in a constituency. And it has ethical implications for the functioning of India’s democracy—given the theoretical possibility that abstentions may outnumber the votes polled by the winner.

Under the first-past-the-post principle followed by India, a candidate can get less than the majority of the votes cast and still end up as the winner.

Former chief election commissioner T.S. Krishnamurthy described the Supreme Court verdict as one that would bring “big change" in the long run to the election system in the world’s largest democracy.

The main opposition Bharatiya Janata Party (BJP), too, welcomed the verdict, while the ruling Congress party said it was too early to respond.

Later in a press statement, the EC said that it would print the NOTA (none of the above) option “in a separate panel on the ballot paper below the name of the last contesting candidate". It also added that it would take appropriate steps to compile the number of people who opt for NOTA in a particular constituency.

A senior official from the EC, who did not want to be identified, said, “As it exists today, as per the current law, the candidate who secures the highest number of votes is declared elected. Since the NOTA cannot be considered as a candidate, the winner would remain unchanged."

According to Chief Justice Sathasivam, such a move “gives the voter a right to express his disapproval with the kind of candidates that are being put up by the political parties", which will “compel political parties" to field “sound candidates" and those “known for their integrity". He said that the voters’ expression that candidates are “not worthy of his vote" is fundamental to a vibrant democracy.

Such a move, the court said, will “foster purity of electoral process" and “will signal to political parties and candidates what the voter thinks about them".

Experts agreed that the judgement would not make any change to the winner unless the law gets amended.

“The order would absolutely not alter any results of the election as of now even if the NOTA option is exercised for 90% of the votes," K.J. Rao, a former adviser to the EC, said. “However, the order does provide for secrecy under the Representation of People’s Act (RPA) and the court has also urged that the NOTA option should be publicized," he said.

Rao also said that a change in the current provision can be made by amending the RPA Act, for example by saying that if the number of NOTA options exceeds the votes polled by the highest winner, then a re-election should be called.

Welcoming the order, BJP spokesman Prakash Javadekar, said, “This is a very important judgement which will help clean politics.

“We have so far not got the copy of the order, we have to study it. This judgement will put pressure on political parties to identify good candidates for election. We will not want our candidates to be rejected by the voters," he said.

The Congress party, however, refrained from making any comments. “This order needs to be analysed properly. Different aspect of the judgement has to be examined and we would able to comment on it only after that," Bhakta Charan Das, a spokesperson for the Congress party, said.

Friday’s Supreme court order is one among a series given by the highest court aimed at cleaning up the electoral process. Earlier this month, it ruled that politicians who concealed information in their nomination papers would be barred from contesting elections. Another ruling rejected the government’s appeal to review an earlier decision barring convicted lawmakers from continuing in Parliament or state legislatures.

Prashant Bhushan, a senior Supreme Court advocate and a member of Aam Aadmi Party launched recently on an anti-corruption platform, also supported the court’s latest verdict.

“To say that no one in the list of contestants is worthy of being elected is a fundamental right of the voters. The Supreme Court has given this order because the situation is such that political parties are fielding candidates with criminal backgrounds," he said.

“Political candidates provide the weakest link in our democracy. Political parties will have to improve the quality of candidates, “ former chief election commissioner Krishnamurthy said. “Candidates are currently chosen on the basis of caste, community, language or mostly money power—all euphemistically called the winnability factor. But now, political parties will have to put up better candidates. This order will definitely erode the winnability factor."

The court also said that NOTA will give an option to “dissatisfied voters" who do not turn up for elections and whose votes are then misused.

The court struck down rules 41(2) and (3), and 49(o) as being “arbitrary, unreasonable and violative" of constitutional guarantee of freedom of expression and equality and the RPA Act’s provisions ensuring secrecy. Rule 41 (2) empowers the returning Officer to mark an unused ballot paper as “returned: cancelled" disclosing the voter’s abstention, whereas 41 (3) required such unused ballot papers to be stored separately.

Rule 49(o) required the presiding officer to make a remark that a voter has decided not to vote and required him or her to sign against such a remark.

In case of EVMs, the court noted that the secrecy of the vote was compromised “as the elector is not provided any privacy...when the neutral/negative voting goes into record" due to the design of the machines.

The court rejected the government’s argument that secrecy “is extended only to those voters who have cast their vote". It held that “no discernible public interest shall be served by disclosing the elector’s vote or his identity".

Recognizing that “voters’ participation explains the strength of the democracy", he court held that “lesser voter participation is the rejection of commitment to democracy slowly but definitely".

The order noted that “non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India" and, hence, participation—even in the form of rejection of candidates—should be permitted.

According to Krishnamurthy, party supporters who used to cast votes in the names of voters who did not turn up will also not be able to do so any longer as the Supreme Court order is likely to bring disenchanted voters out to vote.

Anuja and Gyan Verma contributed to this story.

Click here to read the Supreme Court’s order over voters right to reject option.

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