NOTA: Something missing yet something achieved.

                         The Supreme Court in PUCL v UOI held that the EVMs must now include the NOTA (None Of  The Above) button as an extension of secrecy for an eligible voter’s right not to vote. Since the petition was a Writ Petition under Article 32, the Court had to judge its maintainability, as it was contended that Right to Vote is considered a statutory right. The Court held that although Right to vote is a statutory right, the decision taken by the voter is a facet of Freedom of Expression under Art. 19(1)(a). Fundamental Right under 19(1)(a) and statutory right under S. 79 of Representation of People Act is violated if right not to vote is denied. Thus the Court held that the Writ Petition is maintainable. The Court held that “Democracy is about choice. This choice can be better expressed by giving the voters an opportunity to verbalise themselves unreservedly and by imposing least restrictions on their ability to make such a choice." Additionally, accepting the EC’s suggestion, the Court directed the NOTA button to be included in the EVMs.

                Chief Election Commissioner V.S. Sampath had made it clear earlier this month that the NOTA option would be available to the five Assembly election-bound States, the modalities of its inclusion had been specified in a communication issued on Friday. The option will be provided at the bottom of the panel on the EVMs or as the last row in the ballot paper after all the candidates have been listed with their respective symbols in the same language used to list the candidates.

                             At present, under the Representation of the People Act, the returning officer is duty-bound to declare the candidate who secures the maximum number of votes as the winner. NOTA is not a candidate. Now the question arises whether there will be a re-poll if NOTA secures more votes than any candidate. Under the present law there can be no re-poll. This issue would have to go back to Parliament. 

                             As has been clarified by S.Y.Quereshi (former CEC) in the The Indian Express, the judgment does not actually recognize this form of right to reject. In the article, Quereshi argues that since right to reject will mean that a re-election will have to take place in certain cases (if the rejection option receives more than 50% of the votes or if the number of votes is greater than the highest number of votes for any candidate), it is not a desirable option, primarily noting the wastage/lack of resources and the rights of the contestants.

                 With regard to the disqualification of the candidates, Quereshi argues that the candidates’ right to contest will be violated. This essentially means the former CEC is weighing the right to contest vis-a-vis the electorate’s right to vote and freedom of expression! The former must not be given greater weight over the latter. A suitable solution must be worked out. For example, a minimum percentage of votes may enable the candidate to re-contest. The political parties are unlikely to field rejected candidates in any case. 

                     In India countermanding of elections on voters’ expressing their disapproval will require an amendment in law. The Supreme Court cannot in a writ of mandamus direct the government to do this. Such an initiative has to be shown by the executive and reciprocated by the legislature. However, what is encouraging is the fact that this judgment would lead to very strong demands for the ‘right to reject’ option as is available in other countries. It is of great significance to note that right to reject is already there in many countries of the world.

                 Another biggie of the same league former CEC N. Gopalaswami has presented entirely different view and is of the opinion that the right of negative voting should extend to a right to reject all candidates. He says that "The NOTA case is a classic example of the government’s failure to do the right thing at the right time. The Election Commission of India (ECI) moved the Law Ministry in 2001 for an amendment to the rules to provide for a button in electronic voting machines in order to protect the identity and secrecy of a voter who does not want to vote for any candidate." He has also mentioned in his article that, with 12 crore first time voters who will have NOTA before them in the coming election to Parliament, the stage is set for the electorate to challenge political parties’ commitment to decriminalising the legislative bodies. A comprehensive electoral reform is the need of the hour but if the political class keeps dragging its feet, courts may be willing to clean the Augean stables. Luckily enough I would also be one of those 12 crore Indians who would vote for the first time and I seriously hope that I will not be forced to use the NOTA button. But If I am I won’t hesitate to waste my vote for the cause of ‘right to reject’ which is still to be achieved.