This article is written by Shailee Mishra, from University of Allahabad.

Abstract

Disappointed by the political set-up, no one wants to elect any candidate in an affray or promote any political party, however, still want to exercise his or her right to vote. In this situation, by expressing a preference for “None of The Above” abbreviated as NOTA a citizen can choose not to vote. In 2009, it came in use for the first time in India and it is the 14th country to introduce this. Chhattisgarh was the first state in India to give this right to the citizens who wanted to cast their votes in the Local Government elections. It makes no difference to the quality of candidates fielded but it provides secrecy or privacy to the voter’s ballot.

Introduction: Parties and the Dispute

In 2004, the People’s Union for Civil Liberties (PUCL) had moved the Supreme Court of India with a petition and challenged the validity of Section 33(B) of Representation of People’s Act, 1951 which specified that electoral and political candidates were not bound to divulge any information which is not mandatory under the law. The Supreme Court of India reasoned and held that the accessibility of basic information about the candidates empowers the Indian voters to make an informed decision under the right to freedom of speech and expression described in Article 19(1)(a) of the Constitution. 

The Apex Court directed the Central Government to provide all assistance to Election Commission to introduce a new option NOTA in the EVMs and Ballot papers. Court also directed the Election Commission to educate the masses about its introduction. An Election Commission issued directives to effectuate this judgment delivered by the Supreme Court of India. 

Earlier Electronic Voting Machines showed the only a list of candidates before the introduction of NOTA and if a voter does not want to cast a vote against anyone of the listed candidate then according to Rule 49-O of Representation of People’s Act, a voter had to notify the Presiding Officer at the election booth. It has nothing to do with the results of elections but ensures that voter’s vote is not misused. Thus, NOTA protects the privacy of the ballot.

Relevant Legislation which supports Introduction of Nota

• Article 21(3) of UDHR and Article 25(b) of the ICCPR provides for secret vote or ballot for guaranteeing the free expression of the will of the electors.
• Section 79(d) of the Representation of Peoples Act defines electoral right which includes right of a person to vote or refrain from voting at an election whereas Section 128 of the Act obliges any person performing any duty in connection with the recording or counting of votes at an election to maintain secrecy and penalizes in failure.
• Article 324 of the Indian Constitution provides necessary provision in the ballot papers and the voting machines for protection of right not to vote and to keep the exercise of such right secret.

In 2014, the Election Commission of India introduced NOTA in the election of Rajya Sabha. Professor Tarun Deep Girdher of National Institute of Design (NID) Ahmedabad, created the symbol for NOTA in 2015. The symbol is a sign of disapproval having a cross with a list of other candidates. This sign makes it easy to acknowledge and recall.  NOTA is only available for the elections of Lok Sabha and State assemblies but not for Rajya Sabha and State Councils. 

NOTA enables the voters to express their unacceptance for the listed candidates.  So, the main motto behind introducing NOTA option is to enable electors to vote for any of the candidates from the list without violation of the secrecy of their decision. The right to cast a vote allowed to all citizens must be granted the vote of disfavor.

What if Nota Votes are in Majority?

NOTA is also known as “the concept of negative voting”. The concept of negative voting already exists in 13 countries considering the results of NOTA in distinct ways. Whereas in India, if NOTA votes are in majority, it does not change the election result but the next majority candidate will win the election. The results of an election will not be modified by the option of NOTA.

Here we can see Negative Consequences of Nota: 

As per the provisions described in Rule 64 of Conduct of Elections Rules and Section 65 of Representation of People Act, 1951, “a candidate who will get a larger no. of votes, the Returning Officer will declare that voter elected”. NOTA in itself does not mean rejection. But according to Indian Democracy, if out of 100 votes, 99 secured by NOTA and 1 vote secured by another candidate, then the latter will be declared Winner. 

NOTA only appears as cosmetic in nature and currently, there is no legal standing in India. If total no. of NOTA votes crosses a certain percentage, a re-election must be held and it has been a matter of great debate. In India, the Right to Recall which acts as pre-cursor to public displeasure does not exist and it weakens NOTA.

Apart from that, there are some Positive Consequences of Nota:

Although there are lots of negative points of the introduction of NOTA, however, we cannot neglect the positive points of the NOTA.

• The introduction of NOTA is a healthy sign of growing democracy in India. Voter’s participation in the election is an essence of democracy. Non- participation only causes thwarting and disinterest which will make democracy to not grow. 
• The option of NOTA gives the voter the right to express their unacceptance or disapproval of listed candidates being put up by the electoral parties. When political parties will see unacceptance by the majority of NOTA votes, they will try to change according to the voter’s wishes.
• NOTA gives a very strong point to compelling political parties to nominate a sound candidate and in this way, best available men will be chosen as citizen’s representatives to regulate and govern the nation. 
• It gives the signals to electorate parties and candidates as to what voters of the nation think about them, which would promote the vibrant democracy.
• The most important aspect of introducing NOTA is the secrecy of voting procedure which is an important part of free and fair elections.

“The option of no choice is welcome but it doesn’t quite sanction the voter.”

Endorsements of Ameliorating Nota

NOTA can empower voters if some recommendations and improvements could be made. Some of the recommendations by Association for Democratic Reforms (ADR) and National Election Watch (NEW) concerning enumerating of votes in a specific constituency.

1. If the no. of votes of NOTA are in majority then the winner must not be the person who holds second votes of the majority. However, re-elections must be held to choose another representative of the people and till that time the constituency should be ruled by the Governor.
2. A certain percent of votes should be fixed for conducting re-elections in every constituency that if the NOTA votes are higher than a certain percent, re-elections must be held
3. The political parties who lose to NOTA votes must not be allowed to re-elect for some specified period in future.
4. The candidate who loses to NOTA votes must not be able to contest election in that specific constituency as well as in those constituencies where no. of NOTA votes could not have gained maximum votes.
5. That candidate should be declared elected who gets at least 50% plus one of the cast votes. If it would not happen then the whole process must be iterated.

This may appear as a clumsy and verbose process but it will nudge the whole system in a direction of non-corrupt representatives and will encourage political parties to put up better candidates.

There had been a no. of PILs filed in the Supreme Court of India by the citizens to make NOTA effective. PIL seeks a direction to the election panel to nullify an election result and to conduct a fresh election if NOTA gets the maximum votes in a constituency. But the three-Judge bench consisting Justice Deepak Mishra, A.M. Khanwilkar, and D.Y. Chandrachud refused to entertain the plea and reasoned the suggestions as unworkable and said holding an election in every constituency is very serious and expensive business.

The PIL also said that the Right to Reject and chose a new candidate will give power to people to express their disapproval and discontent. But the petitioner advocate Ashwini Kumar Upadhyay closed to adjourn the petition after sensing the mood of rejecting the plea by Supreme Court 3 judge bench.

Despite all these, the Government requires to take NOTA a step further by contributing to some modifications. Instead of deliberating NOTA votes as null and void, the Government should analyze the voter’s viewpoint towards NOTA and fix the problem.  

Biggest Problem: How to Correct Voters?

Before pointing fingers at corrupt political parties and candidates, we first require to work on how to correct the voters. Nowadays, people come to vote as per their needs which they get from the parties. They only think about their future despite the community en masse. One friend who lives in my village quoted that in the last election of village gram panchayat, people voted just for rupees 100/- which was given by the candidates in advance. And also said that people also voted for beer bottles, pressure cookers, and many such items which were delivered by candidates to every voter before the contest of elections. So, voters need to change their behavior towards the elections before they want to bring a change in corrupt political or electoral parties. And they should reject all the free commodities offered by the government before elections and should refuse whatever freebies offered by the Government. They should cast their essential and worthful votes to the non-corrupt, solemn, uncontroversial, and deserving candidates. And must know the value of their votes because each vote plays a crucial role in electing the deserving candidate who will work worthwhile for the betterment of that constituency from where they are being elected.

Conclusion

Though the introduction of the option NOTA does not amend the result of the elections, it proved to be a crucial step because people are given the right to express their opinion at least. Somewhere, its introduction reduces decriminalization in politics. We should consider the introduction of NOTA a first step and we must work more on this to make it a right to reject i.e. the power to reject the candidates who lose to NOTA and to opt for re-elections. 

The introduction of NOTA has been seen as very crucial for the growth of democracy because it increased the percentages of polling. It provides signals to political parties and because of large no of disapproval votes there will be a systematic change and electoral parties will be pushed to accept the will of the citizens. 

All these changes are necessary but the attitude of the voters should change first before they want to bring change in political parties’ behavior. They should not be attracted by the freebies offered in advance by political parties and must choose a candidate who could be proved worthwhile for the society en mass.

NOTA is a better way to prove democracy in India but in some terms, it is lagging. There could be the real use of NOTA in a democracy only when the candidates are disqualified after majority votes are cast to NOTA and the re-elections take place with new candidates because citizens have already disapproved of the existing candidates. THAT WOULD MAKE INDIA DEMOCRATIC IN REAL SPIRIT!

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