NOTA as a ‘fictional candidate’ (1/2): Tracing the evolution of the legal position

Aditya Prasanna Bhattacharya

This post explains the evolution of NOTA in India, starting from unmarked paper ballots to a separate button on EVMs.

NOTA 1 image.jpg

On 9 December, the Ahmednagar and Dhule municipal corporations in Maharashtra are scheduled to go to polls. Insignificant though it may seem (these are civic body elections after all), these polls, in fact, represent a watershed moment in Indian election law. This is because each constituency (ward, in this case) in this election will have a ‘fictional candidate’ in addition to the usual candidates: ‘None Of The Above’ (‘NOTA’).

This is in pursuance of a 10-page Order issued by the Maharashtra State Election Commission (‘SEC’) on 9 November, which has been variously regarded as ‘landmark’, ‘innovative’ etc. To avoid confusion, it must be clarified that ‘NOTA’ has been available as an option on the EVMs in all national and state level elections since 2013, pursuant to the Supreme Court’s (‘SC’) decision in People’s Union for Civil Liberties v Union of India. But this SEC Order takes NOTA a step further by creating what has been termed a “Fictional Electoral Candidate”. It states:

12.1(ii)If in any election, all the contesting candidates individually receive lesser votes than the ‘Fictional Electoral Candidate’, i.e. NOTA, then none of the contesting candidate (sic) will be declared as elected and fresh election shall be held for that post.”

Essentially, NOTA will be treated as a candidate in itself, the effect of whose victory will be to conduct fresh elections. Several legal issues are immediately noticeable: Is the concept of a ‘fictional candidate’ legally tenable? Do the existing laws require amendment to allow the legal fiction of NOTA as a candidate to be permissible? Does the SEC have the competence to issue the Order? But before we delve into these questions, let us take a step back to appreciate the development of NOTA in India.

 1. Pre-EVM system: Ballot papers

Before the introduction of EVMs, the use of ballot papers allowed voters to cast a varied form of a NOTA vote. They simply went to the polling booth, registered their presence, and dropped their ballot into the ballot box without making any mark on it. This would mean that the voter does not approve of any of the contesting candidates. It is important to note, however, that such an unmarked ballot paper would be considered as ‘invalid vote’, as it is a violation of Rule 39(2)(b) of the Conduct of Election Rules, 1961. Nevertheless, it allowed a voter to cast what is for all purposes a NOTA vote, in the same manner as she would have casted a regular vote.

2. Introduction of EVM

This changed with the introduction of the Electronic Voting Machine (EVM). When they were introduced, the machines did not have a button for the ‘NOTA’ option, and it was impossible to leave the polling booth without pressing one of the buttons. Thus, in order to casta vote (valid or invalid), a voter was requiredto press a button, thus indicating her approval for one candidate or the other.

If the voter, after having her presence at the polling booth registered (by filling in Form 17A), decided to not cast a vote, then “a remark to this effect shall be made against said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.” (Rule 49-O, Conduct of Election Rules)

Further, when a voter presses a button on the EVM, a high-pitched beep is emitted and a green light appears on the Presiding Officer’s control unit. This beep and light, triggered when the voter presses one of the buttons, is heard and seen by everyone in the polling station. Now, when a voter decides to not cast her vote, none of this happens, clearly indicating to everyone that the voter has decided to not cast a vote at all.

As is apparent, this violates the secrecy of the ballot. The decision to cast a vote is treated differently from the decision to notcast a vote. In fact, this was the primary ground for the challenge to the constitutionality of Rule 49-O in 2013.

3. People’s Union for Civil Liberties v Union of India ((2013) 10 SCC 1) (‘PUCLcase’)

The lack of secrecy of the ballot in case a voter decided to not cast a vote was challenged before the Supreme Court as being violative of the voter’s ‘right to vote’. The Court recognised that the ‘right to vote (or not to vote)’ flowed from Section 79(d) of the Representation of the People Act, 1951(‘RP Act’), which defined ‘electoral right’ as the “right of a person to…to vote or refrain from voting at an election” (emphasis supplied). This is therefore a simple statutory right. But a voter’s choice to vote or not to vote, after having verified the credentials of the candidates, was held to be a form of freedom of expression under Art. 19(1)(a) of the Constitution of India (‘Constitution’).

Further, the Court noted that Section 128 of the RP Act guaranteed the secrecy of the ballot, and sanctioned personnel who breached such secrecy. Thus, the non-maintenance of secrecy of the decision to not vote is contrary to statutory provisions, and also infringes on a fundamental right.

Based on these factors, and an infringement of Art. 14 (because of the differential treatment of persons voting and those deciding to not cast a vote), the Court held Rule 49-O to be ultra vires Section 128 of the RP Act and Art. 19(1)(a) of the Constitution.  It then directed the Election Commission of India (‘ECI’) to add the NOTA button on the EVMs. A voter would now be able to express her disapproval of all the candidates by selecting the NOTA option, instead of deciding to not cast a vote at all.

Notably, the Court stated:

¶37: “…A positive ‘right not to vote’ is a part of expression of a voter in a parliamentary democracy and it has to be recognized and given effect to in the same manner as ‘right to vote’. A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates in the field worthy of his vote…the only way by which it can be made effectual is by providing a button in the EVMs to express that right. This is the basic requirement if the lasting values in a healthy democracy have to be sustained…

¶51: “…For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. 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 given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting.

With this decision, the concept of a NOTA vote was implemented in Lok Sabha and State Assembly elections, which are handled by the ECI. Elections to the third tier (municipal corporations for eg.) are handled by State Election Commissions (‘SECs’), who, although not bound by this decision, generally implemented it. Thus, a situation was reached were most polls across the country had a NOTA option on the EVMs.

Conclusion

Pursuant to the PUCL case, the ECI specifically clarified that in a situation where NOTA received more votes than any other candidate, the candidate who has secured the most number of votes would not be declared elected. Thus, NOTA has had no impact on the result of the election, apart from giving voters the right to not vote for any of the candidates. This helped create a distinction between those who do not wish to vote at all, and those who want to vote but do not approve of any of the candidates. In addition to this, it helped re-introduce the secrecy of the ballot when a voter decides to not vote for any of the candidates.

With this primer in mind, I will analyse the Order of the Maharashtra SEC in the next post.


Image Source: New Indian Express

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