The purpose of the Article is to look at the need to have laws or rules which enable a voter to not choose any of the candidates in an election. There are two kinds of elections in India, the Constituency Elections, and the Elections of the Council of Ministers.
By: Ram Agarwal, 3rd Sem LL.B Hons., KRM University, Gurugram
NOTA in Constituency Elections
NOTA, or “None of the Above” means the voter must have full rights to choose from the given batch of candidates, or if he so thinks that none qualify according to him, he can press “None of the Above”. Whether it is beneficial in the long run, remains to be seen after evaluating the pros and cons of the concept.
On 18th November, 2014, before the Assembly Elections in Himachal Pradesh, a notice had been released by the Election Commission regarding the voter’s rights to exercise NOTA in the elections. This was perhaps the first time India had witnessed such a thing in a general election.
The Supreme Court of India, in a ruling in the case of Shailesh Manubhai Parmar V Election Commission of India, MANU/SC/0881/2018, ruled that NOTA would completely destroy the value of a single vote, and encourage defection which will result in a malignant disorder. If this is to be believed, then defection should never be there when there is no NOTA. By saying so, the court says that NOTA is one of the main reasons for defections.
It must be kept in mind that the democracy rests on the principles of purity of thought and expression, integrity towards one’s nation and country, morality, honesty, decency and morally correct thinking. If the electorate is presented with the bunch of candidates that are morally and physically tainted with crimes and cases, how will the democracy survive in the hands of such people?
Such immoral people can neither be expected to have purity, nor integrity. Then how can the electorate believe that once elected, they will do justice to their posts? Obviously they cannot. The principles of democracy cited above can only be ensured if the very process of elections remains unpolluted and unsullied. NOTA in a constituency election is, therefore, an absolute must. What happens when the same is applied to Assembly Elections? Can the NOTA have same advantages?
A definite right “Not to Vote” is as much a part of an expression of a voter, as is the “Right to Vote”.
It must be given the same respect as the Fundamental Rights of a voter. In case a voter thinks that none of the candidates is worthy of his vote, he must have this option. It is as important as the right to liberty.
Naturally, when, over a period of time, the electorate keeps on rejecting the candidates of political parties who regularly field tainted candidates, those parties will be inclined to think that unless and until they field the right candidates, the public is not going to favor them. This will cleanse up the whole system of elections.
This way of negative voting will let the parties know as to what the electorate thinks about them.
NOTA in Assembly Elections
In the case of Shailesh Manubhai Parmar V Election Commission of India, MANU/SC/0881/2018 (Supra), the Supreme Court, citing Article 80(4) of the Constitution, which states that “The Representative of each state in the Council of States shall be elected by the elected members of the Legislative Assembly in accordance with the system of Proportional Representation by a Single Transferable Vote. If analyzed properly, the Proportional Representation can be exercised only if there is more than one candidate in the poll.
Conduct of Election Rules, 1961 speak tacitly about some of the provisions of Council Elections. Rule 79 is about the transfer of Surplus. It says that if, at the end of the elections, the value of the ballot papers of a candidate is greater than the quota, the surplus shall be transferred to the remaining candidates in order of preference. Further, when at the end of the count, the number of continuing candidates is reduced to the number of vacancies remaining unfilled, the continuing candidates shall be declared elected.
The Rule 79 comes into operation if a candidate has received more votes than his quota. The surplus votes are transferred to the continuing candidates. The moment the votes of a continuing candidate reaches the threshold, he is declared elected automatically.
In the case of Kuldeep Nayar V Union of India & Ors, MANU/SC/3865/2006, the Supreme Court reiterated the value of voting. According to the court, the words “Representative of the States” connote the candidates who are actually elected representatives. In order to be a member of the Council of States, a person cannot be elected beforehand.
Voting at the Council of States cannot be compared to that of a General Election. Ina general election, the electorates votes on a secret ballot. They don’t disclose their choices even after the election is over because they have an inherent fear of victimization.
But the elections to the Council of States contain electors who are already the elected members of the Legislative Assemblies, and they have party affiliations already. Meaning thereby, that there is no need to have NOTA in these elections. The electorate in these elections cannot have a free choice always. Sometimes they are bound by the party discipline. If they go against the party philosophy, they can face expulsion from the parties altogether.
Thus in a constituency election, the people vote; whereas in a Council election, it is elector who casts his vote. In this case the open ballot system is there.
The great evil of political defections is a matter which should be of concern. In case Council of States decides to go with NOTA, this evil will spread its wings to greater heights. While NOTA is beneficial to a country like India for the constituency elections, the same is detrimental to the very pillars of democracy in the context of Council of Ministers Elections.