• Karun Gupta

A Note on NOTA

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.

- J. Sathasivam [1]

The ‘None of The Above’ (NOTA) option gives a voter the right to express a negative opinion by not choosing any of the candidates contesting in the elections. Effectively, the option provides for a non-selection of any of the candidates and is mandatorily available on all Electronic Voter Machines (EVMs) used in the Lok Sabha and assembly elections [2].

In 2013, India became the 14th country in the world to introduce the concept of NOTA, following the Supreme Court’s directive in the People’s Union for Civil Liberties & Anr. v Union of India & Anr. [3]. The main relief preferred by the petitioners was the issuance of direction to the Election Commission of India (ECI) to provide a necessary provision in both ballot papers and EVMs for the protection of the right not to vote. The apex court stated that;

A positive right not to vote is a part of expression of a voter in a parliamentary democracy and it has to be recognised and given effect to in the same manner as right to vote. [4]

In the end, the three-judge bench tried to capture the essence of the NOTA option;

In view of our conclusion we direct the Election Commission to provide necessary provision on the ballot papers/ EVMs and another button called ‘None of The Above’ may be provided on 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 to not vote while maintaining their right to secrecy. [5]

After the Supreme Court’s verdict, the option made its debut on EVM machines during the 2013 assembly elections, which were held in the states of Chhattisgarh, Mizoram, Rajasthan and Madhya Pradesh [6]. Since then, the option has now been a part of 39 elections (37 assembly elections and 2 Lok Sabha elections).

In its current form in India, though, the NOTA option does not have much bearing on election results. In cases where NOTA secures the maximum votes, the Election Commission of India, as per Rule 64 of The Conduct of Election Rules, 1961 does not conduct re-elections. Rather, it simply declares the candidate securing the second highest votes as the winner.

The exceptions to this are Maharashtra and Haryana. The Maharashtra State Election Commission (SEC) decided that, if NOTA was found to have the highest number of valid votes, then said election for that particular seat would be countermanded and fresh elections would be held. Similarly, the Haryana SEC ruled that none of the contesting candidates would be declared elected, and would also not be eligible to re-file their nomination or contest the re-election [7].

Even though the objective of providing the NOTA option was to give voters the power to reject candidates, data suggests that the option is not particularly popular. For instance, between 2013-18, Chhattisgarh, Bihar and the Union Territory of Puducherry were the only states where the vote share for NOTA crossed 2%. Further, Haryana recorded the lowest NOTA percentage of 0.37%. The Chhattisgarh assembly polls, held in 2013, were the only elections where the vote share for NOTA crossed 3%. Since then, close to 95% of elections have had a NOTA vote share of less than 2%. It is also interesting to note that in states where two different elections were held, the NOTA vote share decreased in the second election in all the states except Telangana, where the NOTA vote share actually increased from 0.78% in 2014, to 1.09% in the 2018 assembly elections [8].

Concurrently, in some constituencies, the NOTA option was quite popular among voters. An example of this is Nilgris in Tamil Nadu, which saw a NOTA securing 46,559 votes, out of a total of 60,02,942, during the 2014 Lok Sabha elections. Similarly, in state assembly elections in 2015, NOTA secured the highest number of votes in Bihar (9,47,279 votes) and NCT of Delhi (35,897 votes), as per the Association of Democratic Reforms (ADR) and the National Election Watch analysis of NOTA votes from 2013-2017 [9].

The State Election Commission of Maharashtra, in one of its orders, noted that voters have lost interest in NOTA since it has primarily failed to meet the objectives of the 2013 Supreme Court judgment. It further highlighted that since NOTA does not have any impact on the outcome of an election, it has not compelled political parties to field good candidates [10].

A Public Interest Litigation has also been filed in the Madras High Court regarding the purpose of the NOTA option in its current form – that is without any rule being framed by the Election Commission regarding its utility or legal status [11].

The way forward would be going along the lines of how the SEC’s of Maharashtra and Haryana have tried to give more teeth to the option of NOTA, by conducting re-elections if the NOTA option gets the highest number of votes. This would also force political parties to field newer and more credible candidates, thereby making NOTA a meaningful means of negative voting through the right to reject, rather than just a symbolic instrument to express resentment, as it is at present.

Endnotes

[1] Para 51, pg 43 of PUCL v Union of India case

[2]https://adrindia.org/sites/default/files/FAQ%20on%20Rule%2049-O,%20Right%20to%20Reject%20and%20None%20of%20the%20above%20(1).pdf

[3] (2013) 10 SCC 1

[4] Para 37, pg 32 of PUCL v Union of India case

[5] Para 61, pg 50 of PUCL v Union of India case

[6]https://www.thehindu.com/opinion/op-ed/nota-and-the-indian-voter/article17378495.ece

[7]http://secharyana.gov.in/web/assets/uploads/2017/02/order%20NOTA%20-%202018.pdf

[8] https://factly.in/is-nota-losing-sheen-data-says-yes/

[9] https://adrindia.org/content/analysis-nota-votes-2013-2017-0

[10]https://mahasec.maharashtra.gov.in/Site/Upload/Pdf/Order%20of%20NOTA.pdf

[11]https://timesofindia.indiatimes.com/elections-2016/tamil-nadu-elections-2016/news/What-purpose-does-NOTA-serve-if-Election-Commission-has-no-rule-on-its-status-asks-PIL-in-Madras-HC/articleshow/52219985.cms

Cover image sourced from: Hindustan Times

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