How NOTA is reforming the legal system in India?


Introduction

NOTA or “None of the above” has been provided as an option to the voters of India in the most election. Through the usage of NOTA, a citizen can choose not to vote for any candidates who are contesting the election. However, NOTA in India does not guarantee dismissal of the winning candidate. Therefore, its only a method to give negative feedback. NOTA does not hold any electoral value i.e. even if the maximum votes are for NOTA, the candidate with maximum vote share will still be the winner.

Since, its introduction, NOTA has gained increasing popularity amongst the Indian the electorate, securing more votes than the victory margin, for instance, in the assembly elections in Gujarat (2017), Karnataka (2018), Madhya Pradesh (2018) and Rajasthan (2018).

What is NOTA?

The Supreme Court, in September 2013, upheld the right of voters to reject all candidates contesting the elections, saying it would go a long way in cleansing the political system of the country. The apex court directed the Election Commission to have an option of 'None Of The Above' (NOTA) on the electronic voting machines (EVMs) and ballot papers in a major electoral reform.

Thus, India became the 14th country to institute negative voting. However, NOTA in India does not provide for a ‘right to reject’. The candidate with the maximum votes wins the election irrespective of the number of NOTA votes polled.

How is a NOTA vote cast?

The EVMs have the NOTA option at the end of the candidates’ list. Earlier, in order to cast a negative ballot, a voter had to inform the presiding officer at the polling booth. A NOTA vote doesn’t require the involvement of the presiding officer.

What difference does NOTA make?

NOTA option will not impact the results of the elections. "The NOTA option on EVMs has no electoral value. Even if the maximum number of votes cast is for NOTA, the candidate getting the most of the remaining votes would be declared winner".
Even, a senior EC official said the NOTA option would not impact the results of the elections. "The NOTA option on EVMs has no electoral value. Even if the maximum number of votes cast is for NOTA, the candidate getting the most of the remaining votes would be declared winner," the EC official told HT.

Why have NOTA if there is no electoral value?

The Supreme Court said negative voting would even encourage people who are not satisfied with any of the candidate to turn up to express their opinion and reject all contestants.
“Negative voting will lead to a systematic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject a candidate is a fundamental right of speech and expression under the Constitution”, said a bench headed by then Chief Justice of India, P Sathasivam.
The bench also pointed out that the system of negative voting existed in several other countries. Even in Parliament, the MPs have the option to abstain during a vote.

When was NOTA first used in India; how did it fare?

The NOTA option was first used in the assembly elections held in five states last year. More than 15 lakh people exercised the option in the states polls. The figure, however, was lower than 1.5% of the total voters. Around 50,000 voters opted for NOTA in Delhi; 3.56 lakh in Chhattisgarh; 5.9 lakh in Madhya Pradesh and 5.67 lakh in Rajasthan.

There was a similar provision before NOTA. What was it?

Before the NOTA option came in existence, people casting negative votes were required to enter their names in a register and cast their vote on a separate paper ballot. Under Section 49 (O) of the Conduct of Elections Rules, 1961, a voter could enter his electoral serial number in Form 17A and cast a negative vote. The presiding officer would then put a remark in the form and get it signed by the voter. This was done to prevent fraud or misuse of votes. This provision was, however, deemed unconstitutional by the SC as it did not protect the identity of the voter.

Why have NOTA if there's 'no electoral value'?

NOTA is for the people who are not satisfied with any a candidate standing in the election as it gives an opportunity to disapprove all of them by still turning up to the polls and expressing their opinion.
The SC said negative voting would even encourage people who are not satisfied with any of the candidates to turn up to express their opinion and reject all contestants. "Negative voting will lead to a systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject a candidate is a fundamental right of speech and expression under the Constitution," said a bench headed by then Chief Justice of India, P Sathasivam. The bench also pointed out that the system of negative voting existed in several other countries. Even in Parliament, the MPs have the option to abstain during a vote.

Some NOTA usages facts:

NOTA polling figures are still small. On an average, the maximum NOTA vote share has not crossed 2.02% of the total votes polled in any election cycle. The perceived cynicism of Indian voters against the political class thus seems exaggerated. However, it is worthwhile to look at the patterns of NOTA voting to find out how the voters have used this option of negative voting.
  • NOTA button saw its debut in 2013 Assembly elections held in four States — Chhattisgarh, Mizoram, Rajasthan and Madhya Pradesh and the former Union Territory, Delhi. In these States and Delhi, NOTA constituted 1.85% of the total votes polled. The average NOTA vote share dropped to 0.95% in the 2014 Assembly elections held in eight States — Haryana, Jharkhand, Andhra Pradesh, Sikkim, Odisha, Arunachal Pradesh, Jammu & Kashmir and Maharashtra.
  • It increased to 2.02% in the 2015 Assembly elections held in Delhi and Bihar. While Delhi polled a mere 0.40%, Bihar saw 2.49% of NOTA votes, which remains the highest NOTA votes polled so far in any State in Assembly elections.
  • In the 2016 Assembly elections held in Assam, West Bengal, Kerala, Puducherry and Tamil Nadu, NOTA vote share dropped again to 1.6%.
  • In the 2014 Lok Sabha polls, NOTA constituted 1.1% of the total votes. Across the elections, the number of NOTA votes polled was larger than the winning margin in 261 Assembly constituencies which went to the polls since 2013, and in 24 constituencies in the Lok Sabha elections.
  • One can argue that in these constituencies the NOTA votes did make a difference to the election results assuming that in the absence of this option a majority of NOTA voters would have preferred one or the other candidate in the fray.

What can we infer from the above data?

- Reserved constituencies have seen a relatively larger number of NOTA votes, which points to the continued social prejudice against political reservation for SC/STs.
- Constituencies affected by left-wing extremism have also recorded higher NOTA performance and here probably it served as an instrument of protest against the State itself.
- It is important to note that these voters have used the democratic means of NOTA to express their resentment rather than boycotting the polls outright.
- NOTA figures are comparatively higher in those constituencies which have seen a direct contest between the Congress and the Bharatiya Janata Party.
- One may read into this some indication of the people’s disenchantment with two mainstream political parties and yearning for alternatives.
- Overall, Indian voters seem to be using NOTA not just to show their disapproval of the candidates in the fray but to express their protest against many things they perceive wrong in the political system.

Why NOTA is good?

NOTA option will force the political parties to select the honest candidates, i.e with no criminal records. NOTA ensures people’s ‘right to freedom of speech and expression’. The disadvantage of 49-O will be overcome with the implementation of NOTA. This will increase the polling percentage.

How are 49(O) and NOTA different?

Section 49 (O) stood annulled after the SC cleared the NOTA provision. It gave the poll officials a chance to find out the reason behind the rejection of a candidate through the voter's remarks in Form 17A. Through NOTA, the officials cannot find out the reason for the rejection. Moreover, it protects the identity of a voter, thus keeping the concept of secret balloting intact.

Which other countries allow NOTA?

Colombia, Ukraine, Brazil, Bangladesh, Finland, Spain, Sweden, Chile, France, Belgium and Greece allow their voters to cast NOTA votes. The US also allows it in a few cases. The state of Texas in the US permits the provision since 1975. The option, however, has faced opposition there.

NOTA cleared, politicians want compulsory voting now

Leaders of the Bharatiya Janata Party, Narendra Modi and LK Advani, welcomed the NOTA provision. They, however, asked for another 'electoral reform'. Both leaders said voting should be made mandatory. "Voters, who without any legitimate justification, have not been exercising the valuable right of the franchise the Indian Constitution has conferred on them have, unwittingly thus, been casting a negative vote against all the contesting candidates without intending to do so," Advani wrote in a blog. "I hold, therefore, that a negative vote would become really meaningful if it is accompanied also by the introduction of mandatory voting," he added.

Using 'NOTA', in a lighter vein

Having withdrawn from the contest for the Chandigarh Lok Sabha seat as the AAP candidate Savita Bhatti, comedian Jaspal Bhatti's widow and actor recently floated the 'NOTA Party' with a wad of currency notes being its election symbol. Bhatti said the party was inspired by the NOTA option given to voters.
"With every party claiming to target corruption, we are wondering where the corrupt will go? So, we have decided that our party will offer a platform to only the corrupt. They are highly skilled and people with great networking. So their strengths need to be utilized," Savita took a dig at the launch.

What will happen if NOTA votes are more than votes of the candidate?

The issue of NOTA has once again cropped up in the assembly elections in the five states and Election Commission of India is discussing the situation when NOTA votes are more than votes polled by winning candidate, then what should happen. People in huge number voted for NOTA. The Election Commission has asked for a suggestion from political parties on this issue.
Out of five states that have undergone elections, Rajasthan got 1,71,370 votes polled under Nota that is 1.4 per cent, Madhya Pradesh 1,20,522 votes that are 1.5 per cent, Telangana 98,336 that is 1.1 per cent, Chhattisgarh 47,048 that is 2.4 per cent and Mizoram 2020 that is 0.4 per cent. Earlier in Karnataka elections, 3,22,829 that is 0.9 per cent of votes have polled. As per the information, after NOTA was started in 2013 over 1.33 crore voters cast their votes for it including Lok Sabha and Assembly elections. Elections in five states too have seen people voting for NOTA and 4.39 lakh people voted for NOTA. 
Actually, in recently held local body elections in Haryana, state election commission decided to re-poll in five districts where NOTA got more votes than a candidate and it was decided that NOTA will be considered a candidate. State election commission official had said that NOTA will be considered a candidate and in case of re-election, all the candidate in the fray will become invalid. The similar decision was taken by the Maharashtra state election commission in which it was decided that if more votes are polled to NOTA than by a candidate, the election will be held again and no one will be declared victorious. Though there are no clear guidelines in the NOTA rules on this issue. Sources in the election commission said that the commission has all options open which are actually in favour of the amendment in section 64 of the election procedure rules of 1961 and very soon will make some amendment in it. Former Chief Election Commission S Y Qureshi term the decision taken by Maharashtra and Haryana state elections wrong and said that re-polling in such situation is illegal. According to Qureshi, in case NOTA gets more votes polled re-election cannot be forced. He said that even if in any election NOTA gets 99 votes out of 100 and candidate gets just one vote in such a situation candidate should be declared victorious. 

The need for electoral reform

With a view to bring “purity” in elections, the Supreme Court in a landmark judgment on September 27, 2013, allowed voters to cast negative votes and reject all candidates as unworthy of being elected. The voter could press the NOTA button on the EVM, it said, directing the Election Commission to provide this option on EVMs and ballot papers in a phased manner and also asked the Centre to give its support to make this happen.
The apex court said that the right to vote and the right to say “none of the above” both constitutes a basic right of the voters. “When a large number of voters will press NOTA button, it will force political parties to choose better candidates. Negative voting would lead to systemic change in polls,” it said, observing that the implementation of the option was akin to the “abstain” option given to MPs and MLAs during voting in the Parliament and state assemblies. If the right to vote is a statutory right, then the right to reject candidates is a fundamental right to speech and expression under the Constitution, it held.

Conclusion

The early trends of NOTA need to be explored further with more elaborate statistical and ethnographic analysis. So far, a small number of Indian voters have come to see NOTA as an instrument of protest. This electoral option will become a meaningful means of negative voting only if it becomes a ‘right to reject’ rather than being a symbolic instrument to express resentment as it is now. A PIL has already been led in Madras High Court seeking the full right to reject in place of NOTA.

Mr Harshit Kiran is Law student of Maharishi University of Information Technology, Noida Campus. He can be reached at [email protected] & Ms Isha Baloni is Law student of Maharishi University of Information Technology, Noida Campus. She can be reached at [email protected]