So, NOTA isn't the game changer; just a mirror for our netas, at best

Two months ago, on September 27, the Supreme Court laid the ground for the citizen’s right to cast a negative vote, whereby you and I could press a none-of-the-above-button, snubbing all candidates contesting a poll.

This led to the obvious ‘what if’ mathematical possibility, ie, what if NOTA wins? The underlying hope was that all political parties will fear NOTA and the new enshrined button on the electronic voting machine (EVM), by the bench headed by chief justice P Sathasivam, will a) shame netas from fielding a rogue, and b) an encore of shame when repolls will have to be held.

Optimism on both these counts emanated from initial reports that NOTA equals the right to reject! Alas, it is not. As the SC clarified Monday, if NOTA ‘wins’, there won’t be a re-poll. In fact, nothing really would happen except that the candidate with the next highest votes will be deemed the winner!

TWO CHEERS
After the September judgement, my chat with SY Quraishi, the chief election commissioner immediately before VS Sampath, gave me context which he authorised me to share. Since 2001, the Election Commission (EC) has been waiting for a reply on their reference to the Union government to get an okay to include a ‘none of the above option’ in EVMs and ballot papers. The Government has been sitting on this since the last 12 years. So, why didn’t you simply stop waiting for government and just order a ‘none of the above’ option in EVMs, I had asked Quraishi. “We were like the man trying to cross the street who asked the policeman whether he could. Obviously, the policeman said ‘no’ and we couldn’t do anything because we had asked!” the former CEC answered, using the oft-repeated story on how Indian babudom penalises the upright.

That said, the spirit behind EC/SC was to foster purity and vibrancy of elections. After all, the concept of negative voting in elections is prevalent in 13 countries.

The idea was also to maintain a concept called “49(O)” in the present system. Under this rule in the Representation of People Act, a voter who after coming to a polling booth does not want to cast his or her vote has to inform the presiding officer of his intention not to vote. The presiding officer in turn has to make an entry in the relevant rule book after taking the signature of the said elector. (Defacing the ballot paper is a crime). In its surveys to assess voter feedback, the EC too had found dissatisfaction among voters with the 49(O) facility. In fact, Quraishi found voters either simply stayed at home, negating his objective of increasing voter participation, or those who showed up looking for the 49(O) register were always in danger of being found out by bullies. The dispensation clearly bolstered unscrupulous elements and impersonators. 

People’s Union for Civil Liberties (PUCL), the civil rights group that had dragged the Union of India to the SC in this matter, therefore rightly argued that Rule 49(O) violates the constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot.
It is significant that the Supreme Court has gone to the extent of raising negative voting to the status of a fundamental right. "Not allowing a person to cast vote negatively," the September 27 order has said, "defeats the very freedom of expression and the right ensured in Article 21, that is, the right to liberty."

Elaborating the need for this right, the judges had said, "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)... which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting."

HOPE ENDS
In a subsequent column, Quraishi therefore wrote, “The SC has stopped short of creating the right to reject, apparently because it was not in the petition. But it has paved the way for it. It's time for the government and Parliament to take the comprehensive electoral reforms forward, for the health of our democracy. If they don't, the current momentum will peter out.”

On his part, J&K chief minister Omar Abdullah made public his fear that ‘right to reject’ will embolden militant groups to herd negative voters into the polling booth and embarrass India’s election process.

Abdullah’s specific problem has won the day.

Our right to have a ‘right to reject’ has lost out: NOTA will hold a mirror, but only for those netas and political parties who can be shamed easily.

Sigh!

(The essayist is CEO & Co-Founder, India Strategy Group, Hammurabi & Solomon Consulting. Tweets @therohitbansal)