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The option of no choice is welcome but it doesn’t quite empower the voter

The Supreme Court has recently passed a judgement allowing voters to choose none of the candidates contesting an election. But without any indication of what is to happen if the majority excercise the option, this might be just a novelty, writes Avantika Mehta.

Avantika Mehta  26th Oct 2013

Illustration: Dev Kabir Malik design

ost people have been celebrating the latest Supreme Court judgment, which calls for a 'none of the above' option button to be added to the polling stations, as a monumental step towards enhancing voter rights — it's being equated with the Right to Reject — but as Dhirendra Ojha of the Election Commission of India tells us, "NOTA is different and the Right to Reject is different." What this judgment grants, and the relief that was prayed for by the petitioner, was that the voter be allowed to exercise this option with the same secrecy that is afforded to those who cast a vote in favour of one of the nominated candidates. Prior to this judgment, a voter who did not wish to exercise his option to vote for any of the nominated candidates in the General Elections would have to inform the Presiding Officer of the election booth, and the same would be noted along with the voter's signature or thumb print. This nullified a voter's constitutional right to secrecy of vote — important to ensure that the voter isn't harassed about his decision not to cast a vote.

So the Supreme Court decision does go some way to hold the right to not vote at par with the right to vote — but overall, these are baby steps. Ninad Laud, a constitutional lawyer for the Court clarifies, "It's a good first step. However, without any consequences such as a mandatory re-election when the majority choose the NOTA option, it may be a mere decoration of the EVM." Here, he quite succinctly enumerates the problem with the present judgment. The petitioners only asked for a NOTA button to be put into the EVM. They never asked for, nor did the Supreme Court clarify any practical implications of the electorate choosing NOTA — both on the election and the candidates that will be rejected by the voters.

"The framing of any guidelines is a legislative exercise. So the Supreme Court was right in holding off," says Karan Bharioke, a litigator practicing in the Supreme Court and the Delhi High Court. But even he's not completely convinced. "Just saying you have NOTA means nothing. What it means to have NOTA needs to be thought out before the option is actually given. The Supreme Court has paved the way to the option with this judgment but the modality of how it's going to work still has to be thought out."

Since the Supreme Court hasn’t clarified anything but the option of NOTA, it is up to the EC to bring in practical implications that should follow a majority NOTA vote. Apart from the mandatory re-election, some legal advisers have suggested that the candidates so rejected should not be allowed to contest further elections for a defined period of time.

Since the Supreme Court hasn't clarified anything but the option of NOTA, it is up to the EC to bring in practical implications that should follow a majority NOTA vote. Apart from the mandatory re-election, some legal advisers have suggested that the candidates so rejected should not be allowed to contest further elections for a defined period of time (about 6 years have been put forth as a suggestion.) Another suggestion that has been floated is that political parties that field candidates who lose to NOTA should bear the costs of re-election.

"Without disqualifying the candidates, it's meaningless. What stops the political parties from coming together and saying 'ok you've exercised your NOTA, but we'll field the same candidates again' — you exercise NOTA again," adds Bharioke. It's by no means a stretch of the imagination to think that political parties may very well behave in this manner, and if they do NOTA will be more than pointless — it'll be a waste of the taxpayers' money. "Without a disqualification, and ensuring that the political parties pay for re-election, you're making a rule at the expense of the people that doesn't benefit the people," Bharioke opines.

ronically, one of the positive implications of the NOTA may be a higher number of people turning out to vote, but most believe that this turnout will be only for the novelty factor and will be concentrated in the urban areas. "For now, I only expect a spurt in the voter turnout in the urban areas; only to hit the button," says Laud.

In a country where voter turnout is usually below 50%, this can be seen as a positive implication. As opposed to a no-show, where political parties can switch the blame to the voter by saying they didn't exercise their democratic right and therefore cannot complain about the outcome, NOTA allows people to come out against the candidates being fielded. By opting not to vote for anyone, a clear message will be sent out — do better; what you're offering isn't good enough. EVM counts may also be released at the polling station, which will go a long way towards transparency in the democratic system. However as Mr. Akshay Rout of the ECI tells us, "We are still working the procedure out in order to comply with the Supreme Court judgment."

However, so far it seems as if NOTA will work as a nullified vote. That is, even if a large number of people take the NOTA option but a small number of people cast votes for one candidate or the other — the candidate who gets the most number of aggregate votes will win. If this is the case, the message is hardly hard hitting.

 
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