“For democracy to survive, it is essential that the best available men should be chosen as people’s representatives… This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus, in a vibrant democracy, the voter must be allowed to choose NOTA…, which will… compel the political parties to nominate a sound candidate”
– Hon’ble Supreme Court of India
Five years, two Lok Sabha elections, forty assembly elections, and multiple by-polls have passed since the introduction of ‘None of The Above’ (NOTA) option in the Indian electoral system, the most recent elections being the General Elections to the Lok Sabha and four states of Andhra Pradesh, Arunachal Pradesh Sikkim, and Odisha in April-May 2019. The provision of NOTA was a result of a 2013 directive by the Supreme Court of India in the case of People’s Union for Civil Liberties v. Union of India (PUCL case).
NOTA is seen as a right to reject belonging to the citizen in the present dispensation. The judgment of 2013 recognized the two most important rights of the voter in the electoral system:
- Right to Reject
- Right to Secrecy
The option of NOTA in the Electronic Voting Machines (EVMs) is the result of this ‘right to reject’ possessed by the voter in our electoral system. Before India, 13 other countries have adopted negative voting or the right to reject. The list includes countries like France, Finland, Belgium, Brazil, Bangladesh, Chile, Greece, Sweden, Ukraine, USA, Columbia, and Spain. Some of them use paper-ballots, while others use an electronic voting system.
Hence, the provision marked its debut in the Indian electoral system in the 2013 state assembly elections of Madhya Pradesh, Chhattisgarh, Rajasthan, Mizoram, and Union Territory of Delhi. Since then, each of the states in India, have at least once witnessed elections implementing the directive. More than half a decade has passed and with the Lok Sabha polls concluding in May 2019, NOTA has been instrumental in voicing the dissent against the candidates put up for elections in the respective constituencies.
Chhattisgarh: A Case Study
Since the implementation of the Supreme Court directive, the state of Chhattisgarh has seen four elections in the state with the provision of NOTA available to the Indian voter. Out of these four elections, two were Assembly elections and two were Parliamentary elections. The numbers reflect an interesting voting behaviour in the electors of the state.
Chhattisgarh was carved out from Madhya Pradesh in the year 2000, along with Jharkhand being carved out of Bihar and Uttarakhand from Uttar Pradesh, under the then Prime Minister Atal Bihari Vajpayee. The story of Chhattisgarh is peculiar as it shows the most unique application of NOTA representation. The state is predominantly a two-party state with Bharatiya Janata Party (BJP) governing during the initial 15 years, since the birth of the state and Indian National Congress (INC) taking over the reins of the government as recently as in December 2018.
In 2014 general elections to the Lok Sabha, two of the top ten constituencies in India, where NOTA polled the maximum number of votes, belonged to Chhattisgarh: In the red belt seat of Bastar, NOTA polled 5.04% of the total votes cast, and in Kanker, NOTA polled 3.14% of the votes cast. The voter turn-out in the two constituencies was 59% and 70% respectively.
The total number of votes polled for the None-of-the-above option was 2,82,744 during the Chhattisgarh State Assembly Elections in 2018, whereas the count was 4,01,058 in 2013. Dantewada Assembly Constituency polled the highest percentage of NOTA vote-share at 9%. In 2013, out of 90 Assembly Constituencies in the state, 33 constituencies saw NOTA getting the third position preceded only by the two national parties of BJP and INC. Chhattisgarh has mostly been a state where the two national parties, the Indian National Congress and the Bhartiya Janta Party sees a direct face-off, with occasional perks for the Bahujan Samaj Party which has proved to be a minor but a third player in the state, and fourth if one considers votes polled under NOTA. Most of the constituencies in Chhattisgarh, especially in those of Naxal hit red belt area; have shown in the two legislative assembly elections that an alternative of NOTA is more desirable than the traditional parties and politics.
In the 2013 elections to the state assemblies of Chhattisgarh, Madhya Pradesh, Delhi, Mizoram and Rajasthan, EPW Journal reports, “15 reserved constituencies occupied top slots in NOTA votes. The highest NOTA was recorded in Bijapur, (10.15%) followed by Chitrakot (9.09%), Dantewada (8.93%) in Chhattisgarh, Junnardeo (6.05%) in Madhya Pradesh, and Narainpur (5.98%) in Chhattisgarh.’ The report goes on to conclude that, ‘Of the 55 assembly constituencies, where NOTA votes exceeded the winning margin in the 2013 elections, 29 were reserved constituencies.”
Thus, one significant but non-conclusive observation in the early years of introduction of NOTA into the system, is that NOTA is exercised more in the SC-ST reserved constituencies. However, in the 2015 and 2016 elections, the higher percentage of NOTA is not specific to reserved constituencies. Another observation is that the areas hit by Left Wing Extremism also tend to utilize NOTA more. However, the pattern in both scenarios is inconclusive as the trends have not been uniform over the years.
The Lok Sabha general elections of 2019 which were held in April-May 2019, might give interesting statistics with a resurging Congress Party. The state has shown with the increased exercise of NOTA, especially in the areas hit with left-wing extremism, that people would much rather accept a third alternative or an innovation in the political and electoral system than giving in to the fallacies of the present political dispensation and electoral discourse.
NOTA And The Voting Behaviour
Voting trends in India suggest that NOTA need not necessarily drive up voter turnout. In the Lok Sabha elections, NOTA did not correlate with voter turnout. In the assembly elections, except Sikkim and Maharashtra, no other state showed any significant relationship between NOTA and voter turnout. The trends so far, show that at least a small number of Indian voters have come to see NOTA as an instrument of protest against many things that they believe are problematic with the political and electoral system of the country. This can only mean that people are constantly looking for alternatives, or for opportunities that would allow them to portray their dissent or show distrust in all of the candidates put together, for the very fact that they are either not satisfied with the present dispensation or they want a change in the manner in which the present system functions.
The belief lies in the fact that once we exercise our right to reject the candidates put up by the political parties and the numbers show a significant share of people rejecting all the candidates, expressing their disapproval with the candidates being put up, there will be a gradual and systemic change. As a result, the political dispensation via the political actors, namely, the political parties, National, State or otherwise, will be forced to accept the will of the people and field candidates who are known for their integrity.
Economic and Political Weekly (EPW) reports that there has been a substantial increase in the use of NOTA in the constituencies reserved for SCs/STs. In the 2014 Lok Sabha elections, the top five constituencies in NOTA votes were all reserved constituencies. These are Bastar (5.03%) in Chhattisgarh, Nilgiris (4.98%) in Tamil Nadu, Nabrangpur (4.34%) in Odisha, Tura (4.1%) in Meghalaya, and Dahod (3.58%) in Gujarat. Four constituencies, namely, Nilgiri, Nabrangpur, Tura, and Ratlam are left-wing extremism (LWE) affected areas. But in the later years, the state assembly elections’ trend didn’t reflect similar readings. This implies that though some parts and constituencies show similar trends as to the behavior of the voters, later years have witnessed a definite and continuous change in voting behaviour. The 2019 General Elections to the Lok Sabha might just prove to be decisive for the future of NOTA. It might just end up setting the course for future electoral reforms.
Giving Teeth To The Tiger: Rejection And Secrecy In Voting
The Law Commission of India discussed the idea of ‘right to reject’ in its 170th report in 1999. This was the time when the paper ballots were still in use. The law commission had suggested then, what it called an “alternative method of election” wherein candidates would only be declared elected if they obtained 50%+1 of all the valid votes cast. Although the Law Commission did not give out a final conclusive report for the implementation of the system, citing difficulties, it gradually gave birth to a debate around the concept of the right to reject the voter. As the debate developed, the Election Commission moved to introduce NOTA and provide for a mechanism to maintain the secrecy of the voter’s choice in an election if they do not vote. This was because the election commission and even the petitioners in the PUCL case wanted to maintain the citizen’s right to secrecy which seemed to have evaporated after the introduction of EVMs or Electronic Voting Machine and neither the ECI demanded nor the petitioners asked the court for a provision to reject the candidates put up in elections.
After the 170th Law Commission of India Report, the Election Commission of India supported the similar introduction of a negative vote, first in 2001, under James Lyngdoh as the Chief Election Commissioner (CEC), and then in 2004 under T.S. Krishnamurthy as the Chief Election Commissioner, in its proposed electoral reforms report. The Election Commission of India was concerned that the introduction of Electronic Voting Machines and the implementation of Rule 49O of the Election Rules, 1961 had made it impossible to protect the secrecy of voting for those who wanted to abstain.
After the suggestions fell to deaf ears of the concerned authorities, PUCL took up the issue and filed a Writ Petition in 2004 challenging the constitutional validity of Rules 41(2) & (3) and 49O of the Conduct of Election Rules, 1961. The council on behalf of the petitioner i.e PUCL contended that both the above provisions, to the extent of such violation of the secrecy clause, are not only ultra vires but also contrary to Section 128 of the Representation of People Act, Rules 39 and 49-M of the Rules as well as Article 19(1)(a) and Article 21 of the Constitution of India, 1950.
The idea of NOTA is to put pressure on political parties to put up better candidates. There have been instances when almost all candidates in a constituency have had pending criminal cases. What does a voter do? NOTA is a potent weapon in the hands of the voter.
However, former Chief Election Commissioner of India, Dr S.Y. Quraishi, contends that NOTA is not the same as the right to reject. Giving an example Dr, Quraishi says, “Even if there are 99 NOTA votes out of a total of 100, and candidate X gets just one vote, X is the winner, having obtained the only valid vote. The rest will be treated as invalid or ‘no votes”. The ECI issued a similar clarification that no re-elections will be held, based on a cumulative reading of Rule 64(a) of the Conduct of Election Rules, 1961 and sections 53(2) and 65, Representation of People Act, 1951.
The most significant change brought in the form of NOTA was seen in Maharashtra. The State Election Commission (SEC) enabled the provision and declared that if NOTA emerged as the winner in any election in Maharashtra, there would be a mandatory re-poll. This was the first significant change in the electoral system since the inception of NOTA. The notification put forward by the State Election Commission of Maharashtra dated 6th November 2018 fields NOTA as a fictional candidate and categorically holds that clause 7 of the ECI order dated declaring that in case NOTA gets the highest votes, the candidate getting the second highest votes after NOTA shall be declared as the winner violates the accepted principle (of the candidate with the majority of votes winning the election) by declaring the candidate as elected even though he/she has secured lesser votes than NOTA. The order also takes note of the PUCL case and contends that the implementation of NOTA:
- has not led to increased voter participation,
- has not compelled political parties to field good candidates,
- does not reflect negative votes in election results and
- does not honour and respect the majority will/ opinion of the people expressed through NOTA
The SEC had earlier found that in the Bori Gram Panchayat polls in the Pune district of the state, NOTA polled 85.57% of the total votes polled and similar other instances where NOTA had performed way better than all of the other candidates, and sometimes all of them put together.
The SEC along with many other scholars felt that the ECI order is disrespectful of the electorate’s mandate. Thus, noting all these anomalies in the order of ECI as well as for giving effect to the Supreme Court order, the SEC of Maharashtra exercising its authority, and to overcome the anomalies, has via para 7 of the order advocated considering NOTA as a “fictional electoral candidate” and read with para 9, the SEC order under 12.1 conceptualized NOTA as a fictional candidate and wherein case it receives the maximum number of votes, all the candidates shall be rejected and fresh elections shall be called from the nominations stage itself. However, where and if NOTA as a fictional electoral candidate wins the second time, the candidate who gets the highest votes after NOTA shall be declared as elected. The SEC exercised its power referring to the commission’s powers as highlighted by the Hon’ble Supreme Court in A.C. Jose v. Sivan Pillai and Ors as:
“Where the act or the Rules are silent, the commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of the election”
Similarly, the SEC referred to the court’s judgment in Union of India v. Association for Democratic Reformswhere the Hon’ble Supreme Court held:
“By issuing necessary directions, the Commission can fill the vacuum until there is legislation on the subject.”
This marked an interesting turn of events in the Indian electoral system as just as the Maharashtra SEC issued the order concerning the elections at subordinate levels in the state, SEC of Haryana followed suit and issued similar orders within a time frame of two weeks. The SEC of Haryana state issued an order dated November 22 stating that if “all the contesting candidates individually receive lesser votes than… NOTA,” then not only would “none of the contesting candidates be declared as elected,” but “all such contesting candidates who secured fewer votes than NOTA shall not be eligible to re-file the nomination/contest the re-election.”
In both the states, the orders stated, these orders shall apply to the general and bye-elections to all the Urban Local Bodies (Municipal Corporations, Municipal Councils and Municipal Committees) with immediate effect.
The two-state election commissions are within the Constitutional boundaries and various Supreme Court judgments as cited by the commissions themselves.
Conclusion
In the words of Major General (Retd) Anil Verma of Association for Democratic Reforms, “In the current system, voters feel their votes are wasted in the absence of due importance being given to NOTA.’ This is what prompted SECs of Maharashtra and Haryana to ‘give teeth to the tiger that is NOTA”.
The SEC implementing orders of re-election and rejection of all the candidates and thus declaring NOTA as elected has shown that NOTA has indeed changed the voting pattern of the electorates as well as brought in much needed electoral reforms. The power of the people utilizing NOTA has empowered the SECs of states to search for avenues in cleaning up Indian politics as it stands today. Many other SECs might follow suit and even the Election Commission of India might have to intervene, suggesting that the electorate has brought down the corrupt practices of the political parties by their valuable votes.
The best approach to implementing a policy is the bottoms-up approach. The Panchayat polls in Maharashtra prompting the SEC to issue relevant orders might as well have proved this approach to be the best. Implementation of the ‘right to reject’ in its truest sense just might be ensured then.
Although as the Supreme Court intended and expected that NOTA will increase voter participation in the elections doesn’t seem to have been achieved if the election commission, state or central gives teeth to NOTA just as in Maharashtra and Haryana, it just might address the concerns of many like Major General (Retd) Anil Verma. The process of cleansing the political system by forcing the parties to put up better candidates seems to have begun already in the fear of ‘rejection’ by the power of NOTA, by ‘We the people of India’.
Thus, it can be summarised that while the Supreme Court had an idealistic approach in adopting NOTA in the electoral system, the State Election Commissions utilizing their power in the Constitution of India, 1950 has turned that idealistic thought into reality. The credit of ‘coercing’ the authorities to treat the ‘right to reject’ of the people at par with other candidates goes to the citizen. What has begun from the Panchayat and Municipal polls in two states might revolutionize the electoral system in India, changing how the Indian voter votes.
Just as we are at the brink of the third decade of the 21st century within a few months, it becomes imperative to have a discourse of electoral and political reforms before the 2024 Lok Sabha elections, to remove the fetters on the provisions we have already got as well as introduce new ones in the light of present political discourse in India if at all we are to become a truly representative democracy which the founders had envisaged.