“There are lot of people who are disenchanted with the existing system. They can now voice their dissent.” – Senior Advocate, Meenakshi Arora
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“There are lot of people who are disenchanted with the existing system. They can now voice their dissent.” – Senior Advocate, Meenakshi Arora

Murali Krishnan

In what can be viewed as a bid to empower the Indian electorate, the Supreme Court through its recent judgments on NOTA and VVPATs has sent a strong message to voters as well as political parties. The Election Commission of India also came in for special praise by the Court for its co-operation and assistance in both the matters.

However, doubts have arisen with respect to the technicalities of the judgment and how negative voting will affect future elections. Bar & Bench spoke to Senior Counsel Meenakshi Arora, the counsel for the Election Commission of India in both the cases. Below are the excerpts from the conversation.

Bar & Bench: Could you talk about the PUCL judgment and its impact?

Meenakshi Arora: With this judgment, the people today have the right to express [the opinion] that none of the candidates in the electoral fray are worthy of their vote. A very loud and significant message will go out to the political parties as to their choice of the candidates. That is the first and foremost impact of the judgment.

The judgment also recognises the right of freedom of expression of the voter to say that he does not wish to cast his vote in favour of the candidates and consequently, express his displeasure over the choice of candidates fielded by the political parties.

Lastly, the concern of the Election Commission of India (EC) as to the secrecy of vote and privacy of the elector has been addressed. The EC encourages voters to cast their vote. Merely because none of the candidates are deserving, he should not be disenchanted and sit at home and not go to the polling booth.

Previously, when ballot papers were used, an elector would use various means of expressing his displeasure about the candidates. He would put his remarks on the ballot paper. Though his vote would be invalid, the secrecy of his vote was protected. With the advent of Electronic Voting Machines (EVMs), this right of expression became unavailable. Today, if an elector goes to the polling booth and chooses not to cast his vote for any of the candidates, then all and sundry present at the polling booth would know that he has not cast his vote. So, the identity of an elector who chose not to exercise his franchise is disclosed and an important right of secrecy and privacy under the Representation of People Act, 1951 (RP Act) is violated.

In 2001, the EC in order to curb this particular violation had recommended the amendment of Rule 49-O of the Conduct of Election Rules, 1961 (Rules) to provide for a button which would say “None of the Above” (NOTA). The Government did not accept this recommendation. Subsequently, the People’s Union for Civil Liberties (PUCL) filed this particular case in 2004.

B&B: Does the RP Act recognise the Right to privacy in case of ‘negative voting’. From the reading of the relevant provisions, it can be understood that the RP Act recognises the right to vote and the right not to vote. 

MA: It also recognises secrecy. There are provisions under the RP Act, particularly also under the Rules, which say that people who are working at the polling booth are obliged not to disclose [details] about the voting.

The right to vote and right not to vote are included in the same provision, namely Section 79 of the RP Act, which defines Electoral Right. Section 128 of the Act provides for secrecy of voting. If the right to vote includes the right to refrain from voting, then the secrecy of such refraining from voting is also required to be protected.

The protection of secrecy is even more relevant in little villages and towns where everyone knows everyone. If a voter does not go to the polling booth, the candidates know that he has not gone to the polling booth. Previously he had the option of not voting for anyone by scribbling on the ballot paper and nobody would know that he has not voted. This was no longer available with the EVM’s.

B&B: What if the Parliament chooses to amend Section 79 of the RP Act and take away the “right not to vote”?

MA: I don’t think that should ever be done. In a democracy you have a freedom of expression and that includes the right to refrain from voting.

B&B: Has the judgment impacted the aspect cited by you with respect to AC Jose v. State of Kerala? The Court has not discussed that aspect in the case.

MA: No, the judgment in AC Jose impacted only the EC. In the case of AC Jose, the EC had used EVMs in Kerala even before the amendment of the RP Act and the Rules to provide for the use of EVMs. This procedure was held to be ultra vires because the RP Act did not provide for a ballot to be conducted through the use of EVMs. The EC relied upon AC Jose to say that it cannot introduce NOTA in the absence of an amendment.

B&B: Since Rule 49-O has now been struck down and Rule 49-B has not been amended, is it not the judgment that will govern the aspect of negative voting?

MA: The judgment is pitched on the ground of freedom of expression to say “None of the Above”. And based on the above, the directive of the judgment will be read into Rule 49-B to make a provision for the NOTA option.

B&B: How do you see this affecting future elections? Would the NOTA hits be taken into account for ascertaining the results?

MA: The objective in any kind of election is to get as many people to exercise their right and cast their votes. If people are not happy with the candidates fielded, they choose to sit at home and not come to vote. There are lot of people who are disenchanted with the existing system. With this judgment they can voice their dissent. It encourages people to come out and exercise their franchise. If they are not happy with any of them, they can express [that] by choosing “None of the above”.

It definitely does impact the highest polling candidate. The person who has polled the most number of votes excluding NOTA will be the returned candidate. Hypothetically speaking, if some day in the future a very large percentage [of voters] exercise the NOTA option, it is possible that someone may come forward and say that the popular mandate calls for re-polling and the legislature/ courts may  consider it at that time. But at present this will not impact the election results.

B&B: Your take on the Court’s observation that this might compel political parties to field candidates with integrity?

MA: I would earnestly hope that the political parties would be compelled to field candidates with integrity and realise their social obligation. I believe [that] even if a small percentage of the votes are cast for NOTA, which sometimes can make a significant difference, the political parties will be forced to introspect. In our democracy, the turnout for election is barely 50% to 55% and in some places it is even less than that. Assuming even if 5-10% exercises NOTA, it could send a very strong message to political parties as it could make a significant difference in the outcome.

B&B: During the hearing, one of the arguments put forth by the Central Government was that, “If people don’t want to vote for anyone, they should sit at home”.

MA: The EC does not support that approach. The EC is very clear that there should be maximum polling and people must come out and exercise their right of franchise.

B&B: How is the EC planning to go forward with this?

MA: The EC has already said that there is no cost impact in bringing about  this particular change. It can be easily done on the existing balloting machine. After the last name of the candidate on the balloting unit, there will be a key with the NOTA option. The Court has also directed the EC to educate people on this.  So, I expect the EC will conduct a campaign for this purpose.

B&B: Last question. Do you think this judgment will bring more voters to the polling booth?

MA: I hope so, I really do. That was the purpose behind EC’s recommendation for NOTA.

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