All legitimate consent requires the ability to withhold consent; therefore, the legitimate consent of voters requires they be able to withhold their consent in an election to office.
The Hon’ble Supreme Court, in its judgment dated 27th September 2013 in, had directed the Election Commission to make necessary provision in the ballot papers/EVMs and provide a button for ‘None of the Above’ (NOTA) in EVMs so that the voters who would come to the polling booth and decide not to vote for any of the candidates in the fray, were able to exercise their right not to vote while maintaining their right of secrecy. In accordance with the order of the Supreme Court, “None of the Above” would be printed in a separate panel on the ballot paper below the name of the last contesting candidate. This ballot paper would be affixed on the Ballot Unit of the EVM. If the voter pressed the button next to “None of the Above” his desire not to vote for any of the candidates in the fray will get recorded in the EVM in secrecy.
It should be noted that something similar was present before in the form of Rule 49-O of the Conduct of Election Rules, 1961.But the Supreme Court in the aforementioned case held that this Rule was unconstitutional. Since earlier the ballot paper or electronic voting machine (EVM) showed only the list of candidates, a voter could not record his vote under Section 49-O directly, but had to inform the presiding officer at the election booth. This violated the secrecy of the ballot and negated the very essence of the private choice of an individual regarding his choice of candidate. Hence the Hon’ble Apex Court decided to introduce NOTA instead. The ‘Right to Vote’, is a constitutional right which is given to every citizen who attains the age of 18, under Article 326 of the Constitution of India, 1950. According to Holland, every right implies the active or passive forbearance by others of the wishes of the party having the right. The forbearance on the part of others is called a duty. As the ‘Right to Vote’ has been given under the constitution a corresponding moral duty is created which holds that every citizen with the right to vote and choose a government has the moral duty to choose an effective government. This moral duty is not only to oneself but also to others including those who do not have the right to vote for themselves; i.e, minors. Hence choosing not to vote at all is much different then choosing not to vote for the candidates who have stood up for the elections. One is a passive denial of your right. The second is an active acknowledgment of your right and your belief as to the unsuitability of the candidates. When you actively voice your objection you try to right the wrong which you feel has or is being done and provides for an opportunity for your objection to be heard and considered by others. This is ultimately a valid expression of your right. When you choose not to vote at all, you very conveniently throw your choice out of the window. It is not considered an absolute rejection of the candidates, but as a rejection of your right.
There is one aspect where the Hon’ble Supreme Court has erred. Nowhere in the judgment has the court stated what should be done if the votes giving for NOTA is more than or equal to 50% of the total votes polled. According to the judgment of the Apex court, even if there are say, 500 NOTA votes out of total 1000 total polled votes, and candidate A gets 250 votes, B gets 200 votes and C gets 50 votes; even though A has got only 25% of total polled voted (and 50% of voters have actively rejected his candidature.), he will still be considered as the democratically elected representative. In short, out of all “bad candidates” the least bad choice will be picked.
This totally dismisses the very purpose behind the existence of NOTA. If voters deem that none of the candidates are fit to lead them, then none of them should be elected and fresh elections should be held with a new batch of candidates. Hence even though NOTA is a very good concept, due to the lack of clarity by our Hon’ble Apex Court as to the procedure to be followed in case there is clear indication of active rejection of all candidates, the very purpose of the existence of NOTA has been reduced to a mere symbolic gesture of rejection. Till the Supreme Court realizes this minor technical loophole or the Election Commission, through a notification decided to actively do something positive about this, the NOTA judgment will merely remain like a toothless tiger, something which filled optimists with a sense of achievement but left the realist feeling cheated.
About the Author
Sourya Banerjee is a student of BBA-LLB (Hons.) from Faculty of Law, IFHE, Hyderabad. He is Co-Founder and Secretary-General of Asian Law Students Association India, Founder and CEO of For the Sake of Argument, and the Publishing Editor of The Legal Bug and Marketing Manager of the Legal Desire. He believes that the improvement of the Legal education system, in specific, and the entire education system, in general, is an immediate necessity to empower youth to lead India into a better future.