Efficacy of the NOTA Option in Indian Polls

AUTHOR'S PROFILE: Suryatanu Dey, a student of BA LLB (Hons.) with Specialization in Energy Law, Semester X, School of Law, UPES, Dehradun.

INTRODUCTION

NOTA or None of the Above option is available to voters in an election, which allows them not to vote for any of the candidates contesting the election if they wish to choose without compromising their right to secrecy. Apart from India, some other countries have the option for NOTA, which is a form of negative voting. Countries like France, Sweden, Belgium, Greece, Belarus, Spain, Bangladesh, Brazil, Colombia, Chile, Ukraine, and the State of Nevada in the US.[i] Also, have some options like NOTA or a negative voting system in their election process.

NOTA has been in existence in India since 2009 when the state of Chattishgarh gave this right to its voters to be exercised in the local government elections on an experimental basis. Nevertheless, it was after the verdict of the Supreme Court of India in PUCL V. Union of India, 2013. It was mandated that another option in the EVMs should be made available to the Voters so that they can access their right to vote and click the 'none of the above option and maintain the right to secrecy. The judgment by the Supreme Court of India said, "We direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called "None of the Above" (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, can exercise their right not to vote while maintaining their right of secrecy."[ii] The then Chief Justice of India, P. Sathasivan, argued that "if the right to vote is a statutory vote, then the right to reject a candidate is a fundamental right of speech and expression under the constitution."

Earlier, any voter not wishing to vote for any candidate fighting the elections had to inform the Presiding officer about his choice under section 49-O of the Conduct of Election Rules,1961, which compromised his right to cast a secret ballot. The Supreme Court held that the provision which compels a voter to inform the Presiding Officer about his choice was ultra vires under Article 19 of the Constitution Of India, which provides for the protection of freedom of expression, and Section 128 of the Representation of People Act, 1951 which permits maintenance of secrecy of voting.

The first time the NOTA option was provided was in the general elections of 2013. Since then, it has been used in the last two general elections and 42 legislative assembly elections, including those held along with the General Elections. According to an analysis by the Association for Democratic Reforms, between 2013 and 2017, 13.3 million people exercised this option in various elections. In the Lok Sabha elections of 2014, six million people exercised this right.[iii] In the 2014 and 2019 Lok Sabha elections, NOTA accounted for 1.08% and 1.04% of the total poll votes.[iv]

NEED FOR NOTA

India, a democratic country that espouses the right of the voters to choose and maintain the secrecy of their choice, must have NOTA as an option in the election process. It gives the voters the right of choice to vote or not to vote for a candidate contesting in an election. It helps to induce citizens to vote as opposed to not exercising their right to vote and, at the same time, keeps their choice a secret.

NOTA option in polls is needed because it gives equal opportunity to every citizen to choose the right not to elect any candidate and does not discriminate based on caste, creed, or gender. It allows the voters the right to dissent.[v]

It is hoped that this negative right would gradually force the political parties to field worthy candidates out of fear of losing votes and bring about a change in the political scenario of India. The voters must not opt for NOTA just for exercising their "right to franchise" vote because it is as good as not casting. There is a need for the NOTA option in a democracy like India. This helps the electorate to choose no one over an undeserving candidate and protects our constitutional right to vote secretly.

CURRENT SCENARIO OF NOTA

At present, NOTA is just symbolic as they indicate the dissatisfaction of the voters towards the candidates contesting or the political party that he or she belongs to. The results of an election are not impacted by the votes polled in favour of the NOTA option because as per Rule 64 of the Conduction of Election Rules, 1961, the Returning Officer declares the candidate was getting the maximum number of valid votes as the winner even if the number of votes secured is less than the Nota votes. It is just a misused option for those who vote just to exercise their right and not vote by choice. It is reasonable to vote by choice for a candidate even if he has just a few qualities and not waste the vote.

Despite voters availing the NOTA option to express their dissatisfaction, it has prevented individuals with dubious backgrounds from getting elected, nor has the political parties taken up the positive action of nominating candidates with better qualifications or impeccable backgrounds. In the current scenario, NOTA has not been able to resolve the problem of dissatisfaction among the voter.

RESPONSE TO NOTA

NOTA is a positive step toward a mature democracy, but it simply does not go far enough. Until its effect impacts the outcome of elections, it is a mere waste of voting rights or a symbol of expressing dissatisfaction. The power of NOTA is defeated as long as it is not considered an outcome of an election and the next best option is declared the winner of the election.[vi] The power of Nota to express dissent is evident when the voters have decided to democratically protest against the government due to failure on their part to meet the needs of the electorate.

A general observation has been that the voters of Reserved Constituencies have exercised the highest percentage of NOTA options. This might be a misuse of the NOTA option by the voters belonging to the general category who refuse to vote for a reserved category candidate even if the person is deserving based on caste-based bias, a social prejudice still a menace in India. A higher percentage of NOTA votes does not necessarily mean that the electorate is dissatisfied; there may be ignorance about the acceptability of the candidate, malicious propaganda against the candidate, or simply exercising the right to franchise without giving any thought to the outcome. The Indian electorate is using the NOTA option in the polls to express their disapproval of the candidate and protest against the political system, which fails to keep its promise.

NOTA has proved to be an instrument of dissent for the electorate, but it will just stay a symbol of dissent unless more power is given to it to matter.

EFFECTIVENESS OF NOTA

NOTUM, in its present format, is a toothless tiger and is just a symbol of expressing dissatisfaction about the candidate or the political party[vii]. The real change will be accomplished if the political parties grow a conscience and nominate candidates ready to work for the electorate and have the necessary qualities to do so.

There is no actual effect of the NOTA option in Indian elections- it is a mere statistic. According to the law, even if the most number of votes polled is attributable to the NOTA option, the candidate securing the second-highest number of votes will also be declared elected. To make the NOTA option affect, specific steps need to be taken by making it a legal option. The law can be amended to conduct re-election in a constituency where the maximum number of votes polled is attributable to the NOTA option with a fresh candidate. The Governor may rule that constituency. In a recent development, the State Election Commission of Maharashtra and Haryana have announced that re-election will be conducted in their local body elections if the NOTA option gets the maximum number of votes.[viii]. Alternatively, the political parties losing to NOTA can be made to bear the cost of re-election and their candidate banned from contesting for a certain period.

This electoral option will become meaningful if it becomes a 'right to reject’ and does not stay a mere instrument to voice dissent.

CONCLUSION

NOTA option in the election process is a controversial issue about which there is a division of opinion among the general public. It can be a positive or negative step depending on the voter's perspective. Before 2013, when the NOTA option was not available, voters generally did not cast their votes if they found the candidate in need of some. The only option for the voters was to fill out Form 49-O and submit it to the Returning Officer stating their reason for not opting to vote. This violated the concept of a secret ballot. NOTA has enabled the voters to cast their vote without their choice being made public even if they want to express their dissatisfaction and ensured they do not face any backlash from the political parties for their action. Since there is no negative voting system in India, NOTA is the best option for the voters to express dissent even if there is no actual consequence.

There is a growing movement and demand for a change in the status of NOTA. The electorate is demanding that NOTA be made into an actual legal tool for change rather than leaving it as just a symbol of dissent. So it is time to take a step forward and make NOTA an effective tool of change and electoral value. The sooner the electorate's voice is heard and acted upon, the better it will be for the upliftment of democracy. It will promote free and fair elections, and the voters will not vote in despair as they will have a solid choice not to be forced to choose.

According to the former election commissioner of India, Mr Krishnamurthy, "In my opinion, NOTA is excellent; we should say if NOTA crosses a certain percentage of votes, for example, if the difference between the winner and the loser is less than the NOTA votes, you can say we should have the second round of elections."

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REFERENCES

[i] M J Vinod, A Decade of NOTA: Make it Effective Deccan Herald. Com (2020), https://www.deccanherald.com/opinion/comment/a-decade-of-nota-make-it-effective-809642.html (last visited Feb 7, 2021).

[ii] None of the above (India), Wikipedia (2021), https://en.wikipedia.org/wiki/None_of_the_above_(India) (last visited Feb 7, 2021).

[iii] Richard Mahapatra, Is NOTA the answer to TINA? Down To Earth (2019), https://www.downtoearth.org.in/blog/general-elections-2019/is-nota-the-answer-to-tina-63994 (last visited Feb 7, 2021).

[iv] M.J.Vinod, supra note i.

[v] Basanta Nirola, NOTA: Reevaluating A Voter’s Right To Reject https://www.youthkiawaaz.com/ (2019), https://www.youthkiawaaz.com/2019/04/nota-a-provision-for-voters-to-express dissatisfaction-in-the-election/ (last visited Feb 8, 2021).

[vi] None of the above (India), Wikipedia (2021), https://en.wikipedia.org/wiki/None_of_the_above_(India) (last visited Feb 7, 2021).

[vii] Stephen Eleazer Daniel, Does the "NOTA" option in elections make sense? https://www.groupdiscussionideas.com/ (2019), https://www.groupdiscussionideas.com/does-nota-option-in-elections-really-make-sense/ (last visited Feb 7, 2021).

[viii] Basanta Nirola, supra note v.