December 4, 2022

The case that introduced NOTA in India for voters

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.

People’s Union of civil Liberties v. Union of India, 2013

A writ petition was filed under 32 by on organization ‘People’s union for civil liberties’ before the supreme court challenging the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961. According to them, these provisions violate the secrecy of voting which is fundamental to the free and fair elections and is required to be maintained as per Section 128 of the Representation of the People Act, 1951 (in short the RP Act) and Rules 39 and 49-M of the Rules.

And thus, the impugned rules, are not only ultra vires to the said Rules but also violative of Articles 19(1)(a) and 21 of the Constitution of India besides International Covenants.

The petitioner prayed for declaring Rules 41(2) & (3) and 49-O of the Rules ultra vires and unconstitutional and also prayed for a direction to the Election Commission of India to provide necessary provision in the ballot papers as well as in the electronic voting machines for the protection of the right of not to vote in order to keep the exercise of such right a secret.

Introducing of the Idea of NOTA

And while presenting their contentions, the impleader party’s counsels (Centre for Consumer Education and Association for democratic reforms was impleader), agreeing with the stand of the petitioners as well as the Election Commission of India, prayed that necessary directions may be issued for providing another button viz., None of the Above (NOTA) in the Electronic Voting Machines (EVMs) so that the voters who come to the polling booth and decide not to vote for any of the candidates, are able to exercise their right not to vote while maintaining their right of secrecy.

A detail of Provisions

Before going further, it is relevant to discuss the provision which were in question in the case.

Sections 79(d) and 128 of the RP Act read as under:

Electoral Right Meaning- 79(d)—

Electoral right means the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election.

128- Maintenance of secrecy of voting—

(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.

Rules 39(1), 41, 49-M and 49-O of the Rules read as under:

39. Maintenance of secrecy of voting by electors within polling station and voting procedure. –

(1) Every elector to whom a ballot paper has been issued shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure.

41. Spoilt and returned ballot papers. –

(2) If an elector after obtaining a ballot paper decides not to use it, he shall return it to the presiding officer, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked as “Returned: cancelled” by the presiding officer.

(3) All ballot papers cancelled shall be kept in a separate packet.

49M. Maintenance of secrecy of voting by electors within the polling station and voting procedures. –

(2) Immediately on being permitted to vote the elector shall proceed to the presiding officer or the polling officer incharge of the control unit of the voting machine who shall, by pressing the appropriate button on the control unit, activate the balloting unit; for recording of elector’s vote.

(3) The elector shall thereafter forthwith—

(a) proceed to the voting compartment;

(b) record his vote by pressing the button on the balloting unit against the name and symbol of the candidate for whom he intends to vote; and

(c) come out of the voting compartment and leave the polling station.

(4) Every elector shall vote without undue delay.

(5) No elector shall be allowed to enter the voting compartment when another elector is inside it.

(6) If an elector who has been permitted to vote refuses after warning given by the presiding officer to observe the procedure laid down in sub-rule (3) of the said rules, the presiding officer or a polling officer under the direction of the presiding officer shall not allow such elector to vote.

(7) Where an elector is not allowed to vote under sub-rule (6), a remark to the effect that voting procedure has been violated shall be made against the elector’s name in the register of voters in Form 17A by the presiding officer under his signature.

49-O. Elector deciding not to vote. —

If an elector, after his electoral roll number has been duly entered in the register of voters in Form 17A and has put his signature or thumb impression thereon as required, decide not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.

International Covenants

The petitioner also sought the reference of International covenants, therefore, the court also referred International covenants.

Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights

21(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) *** *** ***[1];

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

Constitutional Provisions

Constitution was the basis for all prayers. Articles 19(1)(a) and 21 of the Constitution, are as under:

19 – Protection of certain rights regarding freedom of speech, etc.– (1) All citizens shall have the right-

(a) to freedom of speech and expression;

21 – Protection of life and personal liberty–No person shall be deprived of his life or personal liberty except according to procedure established by law.

Discussion

The court while affirming the position that there is no contradiction as to the fact that right to vote is neither a fundamental right nor a Constitutional right but a pure and simple statutory right, said that, the fundamental right under Article 19(1)(a) read with statutory right under Section 79(d) of the RP Act is violated unreasonably if right not to vote effectively is denied and secrecy is breached.

The court recognized the fact that a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows the secrecy to be violated, is arbitrary, unreasonable and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of the RP Act. And emphasized that whether a voter decides to cast his vote or decides not to cast his vote, in both cases, secrecy has to be maintained.

The court had also taken the note of the procedure continued in legislative assemblies and parliament for voting which provides for three buttons: viz., AYES, NOES and ABSTAIN whereby a member can abstain or refuse from expressing his opinion by casting vote in favor or against the motion.

The court reiterated the philosophy for strong democracy and said that voters participation explains the strength of the democracy. Lesser voter participation is the rejection of commitment to democracy slowly but definitely whereas larger participation is better for the democracy. But, there is no yardstick to determine what the correct and right voter participation is. If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same.

The voters participation in the election is indeed the participation in the democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India.

Democracy the basic feature of Indian Constitution

 The court said that, Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The Fair denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country.

For democracy to survive, it is essential that the best available men should be chosen as peoples 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.

Free and fair election as basic feature

The court further said that Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of electors identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons.

While explaining the reasoning for allowing the NOTA, the court said,

Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.

The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate think about them.”

‘ABSTAIN’ option and ‘NOTA’ button

Comparing the ‘ABSTAIN’ button to ‘NOTA option and allowing the NOTA on the basis of ABSTAIN, the court said,

“As mentioned above, the voting machines in the Parliament have three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button.

Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote.”

The decision

As the court indicated already, it held that Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.

And, directed the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called None of the Above (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy.

The bench

The bench was of three judge which included CJI P. Sthasivam, Ranjana Prakash Desai, Ranjan Gogoi. Judgment was authored by the CJI Sthasivam. And it was decide on 27 Sep, 2013.

Reference

People’s Union For Civil Liberties vs Union Of India, 2013


[1] Not relevant for the current topic