Negative Vote - A Right to Not to Vote

This Article was originally written in the year 2012. A recent Supreme Court Judgment on the right of negative voting may also be read, which is available on 
http://supremecourtofindia.nic.in/outtoday/wp(c)No.161of2004.pdf

[This Article discusses in detail about the introduction of the provision of negative voting in our country. Negative voting is the practice whereby a voter casts his vote, but still does not vote. It is a very debatable topic, which had enjoyed a lot of limelight in the midst of the Lok Sabha Elections. This topic has assumed fresh importance since Anna Hazare has resolved to take up this issue for his next agitation.]

One thing which we Indians love doing and while doing, do it with complete pride, is finding out flaws and drawbacks of our country. While looking down upon our nation, we feel that by doing so, we are a class apart, and not a part of the inefficient and corrupt system. But unfortunately all of us are a part of the same rotten system. The listeners of such insult to their country stand up and say ‘nothing can be done by just talking; one has to work for achieving something’. These dutiful Indians surely must be trying their best to do something for the nation, but in the end there is no concrete result, and that’s the reason that after more than 60 years of Independence, we are still lagging behind in almost all fields of life. The reason behind this is not just that the efforts of dutiful Indians fall short, but a major reason is the defect in the root cause. It begins from the various unfair, unreasonable and inadequate provisions of the law. The common man cannot directly make changes in the law. It is the people we elect, who have the power to make changes in the law. So all is in their hands. But, most unfortunately, we don’t have the real power to choose these people, who sit in the legislatures and run our nation. Surely, we are the ones who elect them, but we don’t select them! Adding to this, the ‘we’ who are actually responsible to elect the so-called representatives, comprise a very small portion of the population, as very few people actually come out to vote. The people elected, do not truly represent the people of India. Thus they do not deserve to occupy the seats of great responsibility.

There are two main reasons as to why the so-called representatives do not represent the people of India. Firstly, a large portion of our population does not come out to vote, the reason behind this is that they feel the candidates are not appropriate for the post. Majority of the candidates are uneducated and have strong criminal background. Most of the times the voters have to make a choice between two candidates having an equally strong criminal record, and thus they choose not to vote. Secondly rest half of the population which votes, is not able to reflect their true opinion, as choice made by them is not their true choice, but is a choice made out of compulsion. This is because most of the times, the votes cast by them are mere choices between worst, worse and bad. They vote merely to fulfil their duty. Very few candidates standing for election actually have the credentials for occupying the highly prestigious seats. The parties while nominating the candidates rarely ever lookout for merit in them, most of the times there are various other irrelevant factors. There is no criteria, no requirement of qualifications. But, ironically, there is a long list of criteria / qualifications, even for the job of a chaprasi or a peon. The government can disregard a person for the job of a peon, because of his low level of education (even when the job may not require education), but we the people cannot disregard a person, for the job of forming the legislature and the Government (a job, which is so noble by its very nature and education, knowledge, skill and experience being the prerequisites).

A recent study^[1] shows that during the general elections to Lok Sabha in 1999, only in one constituency, the winning candidate got more that 50% of the total votes in his constituency, and that also was only 54.27% of the votes in the remote and troubled Nagaland parliamentary constituency. In all the other 542 constituencies, the winning candidates got less that 50% of the total votes. In a large number of about 96% of the constituencies (519 out of 543), the winning candidates got less than 40% of the total votes. In a large number of about 31% of the constituencies (169 out of 543), the winning candidates got even less than 25% of the total votes. In 13 constituencies, the winning candidates got less than 15% of the votes. And in two constituencies, the winning candidates got as low as 5.39% and 6.83% of the total votes only. The Prime Minister himself won only 23.37% of the total votes in his constituency. This study clearly shows the true quality of the representation of these winning candidates for the Lok Sabha (i.e., the House of People) for their people.

In this scenario, what is most required is the provision of negative voting. Negative voting is when a person votes but the vote cast is not in favour of any candidate. Negative voting, will grant a right to every voter to vote ‘against all candidates’. He chooses the option “none of the above” (NOTA). This provision will encourage crores of people to come out to vote, who would otherwise enjoy the day of elections as any other holiday. Moreover, even those voters, who used to vote (but voted out of no choice), will then be able to cast their true opinion. Then will the principle of ‘majority rules’ come into actual play. No longer will the citizens of India be compelled and pressurized to choose between the lesser of the two evils.

This provision will have the desired effect only when certain other provisions are introduced. Firstly, the number of no-votes should be counted and taken into consideration for the result of the elections. Secondly, if the number of votes for ‘none of the above’ option exceeds the votes cast in favour of any of the candidates then it shall be declared that no candidate is elected from that constituency. Theoretically, in such a situation, it could be possible that we have an empty Parliament! And, in my honest opinion, having an empty Parliament in such a manner will be a far better situation, than having all the seats occupied by those who don’t deserve to be there. At least the people of India will realise the grave reality. Lastly, fresh elections/re-polling should be conducted within a set time frame (say within 60 days), if candidates are disqualified in the manner aforementioned.

Of course the situation of an empty Parliament is quite threatening. But such a situation may arise once or at the most twice. This will teach a good lesson to all political parties, who will then think hundred times before nominating their candidate, so that their candidate is not disqualified once again. Not only will this provision affect the thinking of political parties but also the candidates so disqualified, as the person losing election in such a manner might already have spent crores of rupees. If he has to contest election again within a few months by spending a few crores of rupees more, and then lose again due to negative voting, he may also, learn his lessons. This will dissuade him from contesting election again. As a result, the never ending circle will break, and a new circle will start altogether, giving rise to true hopes for a better nation. There can be a possibility that all the candidates of the re-polling are also rejected, this may be common scenario in the early days of application of this principle, but eventually a time will come, where no need will arise for re-polling, voters will choose cautiously, so also will the parties put forward well educated, sensible and responsible citizens as their candidates. Another benefit arising from this provision will be that many good citizens, who would otherwise be discouraged from contesting elections, will not hesitate any more to come forward and enter into politics. No more will the word ‘politics’ be associated with words like corruption and crime. Most of the people will now come out and vote, as a result of which, representatives of people will truly be so. They will reflect the true opinion of our people in the legislatures and govern the country in the manner, wished by the common man of this country.

A limited provision of this principle is available in Rule 49-O, of The Conduct of Elections Rules, 1961. This rule lays down the procedure to be followed, in case an ‘elector decides not to vote’ it says:

“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 under sub-rule (1) of rule 49L, decided 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.”

This provision suffers from a serious drawback, wherein secrecy of ballot is compromised. The officials present at the polling booth get to know the name and other details about the elector who refrains from voting. Secret voting which is fundamental to a democratic poll is violated at the very threshold. It is pertinent to mention that Article 21(3) of the Universal Declaration of Human Rights 1948 mandates that suffrage shall be held by secret vote. To similar effect is the mandate of Rule 49-M of the Conduct of Election Rules, 1961, which requires the maintenance of secrecy of voting by the elector and Section 128 of Representation of the People Act, 1951, which requires maintenance of secrecy of voting by every officer on duty. Thus the basic principle of secrecy in voting is completely violated by Rule 49-O. Although, this drawback does not apply to the previous method of casting vote which was ballot-form, wherein the elector could submit/drop an empty ballot paper, but this system is not in use any more.

Another drawback of this provision is that the abstention of casting a vote in favour of any candidate is not taken into consideration during the counting of votes. Such a display of disapproval makes no alteration in the results, which makes it as good as a person being absent on the polling booth. This provision does not encourage the electors to adopt such a practise, rather it tends to discourage the voters from being present, but not vote, as it maintains no secrecy and neither does it yield any result, to add to it all, it leads to wastage of time and money of the nation. Thus this rule will be of no practical value, till certain amendments are made.

Thus certain amendments must be made to the current provisions of law which were also recommended by the Election Commission in the years 2001 and 2004. No steps have been taken by the Government of India till date. The Election Commission had recommended that necessary amendments be made to Rule 22 and 49-B of the Conduct of Election Rules, 1961, which will bring about changes in the form of ballot paper and preparation of the Electronic Voting Machines (EVM), whereby ‘none of the above’ option and button be introduced in the ballot papers and EVMs, respectively. In addition to the above recommendations, provisions should also be made for disqualification of the candidates, if the number of votes for the ‘none of the above’ option is more than votes for any candidate, and consequent holding of fresh elections.

The above changes will have far reaching consequences. There will be various benefits. Firstly and most importantly secrecy of ballot, which is the basic principle in a democracy, will be maintained. Secondly, people of India will be encouraged to vote, thus elected candidates will be the true representatives of people and thus their decisions in the legislature will be a correct reflection of people of India. People will be able to communicate their opinion in a legitimate form. It will be an effective mechanism to throw undeserving candidates out at the very threshold. Thirdly, quality of candidates will drastically improve over a period of time, as a result of which our parliament will be filled with people worthy of the job. Fourthly, opportunity for bogus-voting due to impersonation will also reduce. Lastly, voting on the basis of caste, class, party and other irrelevant considerations will reduce, as the persona of the candidate will be more appealing than the caste, class or locality of the candidate.

The detractors of these amendments say that such measures will be anti-democratic, as it is the duty of citizens to vote, and this will thereby encourage citizens to choose not to vote. But I completely disagree with this, and believe that on the contrary, such measures will help revive the democracy in India. Looking at the current situation more and more people choose not to vote and the percentage of votes cast is proof that rapidly India is degenerating away from being a functional democracy. Refraining from voting i.e. not coming to vote at all is more an attack on democracy rather than coming, voting and recording the fact that such vote was not in favour of a candidate, as this is also a means of expressing one’s opinion and it is a basic right in a democracy to voice one’s opinion truly. Thus those who say that provision for negative voting is anti-democratic must understand that this is the only antidote to conserve our falling democracy. The purpose of the exercise is not to ask voters to “not vote”, but rather to nudge political parties to select better candidates and to make our democracy a real democracy, where true views of the citizens are made to be heard. When they say it is the duty of citizens to vote, I say it is also the duty of the citizens to vote responsibly. In a situation like ours, conscience is often torn between two conflicting duties and thus the only way one can fulfil both duties is negative vote.

Another criticism is that the entire process of re-polling will lead to wastage of public money. But I think democracy needs and deserves such investments. If the return is an improvement in the quality of candidates and in turn better state of affairs, the investment would be well worth it. And more so, the phenomenon of re-polling will be seen only in the first few years of the amendments, thus requirement of re-poling will not be felt once the overall quality of the governance and the state of affairs improve. And of course, re-polling will prove to be far less costly than electing unacceptable candidates to office!

Also many people say that elections are more on the basis of other extraneous considerations rather than the candidate himself, e.g. his caste, class, party etc. and thus introduction of negative voting would be a futile exercise, but I say that there is no harm in introducing such a provision because awareness in such issues is increasing day by day, literacy is increasing and thus there are high prospects of it being used wisely by the people. Moreover, once the quality of the candidates improves, such extraneous considerations will no more be considered relevant, as then the personality of the candidates will automatically come into highlight and overshadow other irrelevant factors.

Moreover, in the light of RTI activism, where detailed information of the candidate (including educational qualifications, criminal records, pending cases, assets and liabilities) is now a right recognized under Article 19(1)(a)^[2], introduction of such a provision becomes all the more useful and necessary. In the absence of the above amendments, RTI looses its true essence as information sought under it cannot be implemented wisely.

It would be pertinent to mention that a PIL was filed by the People’s Union for Civil Liberties before the Supreme Court in 2004, where they had prayed for striking down of Rule 41(2) and 49-O on the grounds that these Rules violate Article 19 of the Constitution. Rule 41(2) states:

“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”.

The petitioners in the above case had also prayed for issue of directions to the Election Commission to make appropriate provision in the ballot papers and the Electronic Voting Machines (EVM) so as to enable the voters to exercise their right of negative voting and also ensure that this right is kept secret. A two-judge bench of the Supreme Court found sufficient merit in this petition and disposed it on 23 February 2009, for consideration of the same by a larger bench of the Court. This case is presently pending for consideration of the larger bench.

The provision of negative voting is not a new concept it is in practise in Spain, France, Belgium, Switzerland, Norway, Ukraine, and U.S. State of Nevada and Colombia.

Thus in the end, I would say that the above mentioned amendments must be brought about soon. This remains as the only hope for improvement in our nation. Vote is the only weapon people have, we must be granted this weapon, sufficiently advanced to be used with full efficiency. India is the largest democracy of the world, and a democratic set up forms a part of the basic structure of our Constitution^[3], thus efforts must be made to keep the democratic values alive.  The above measures will surely encourage more and more people to come and vote as a result of which we will have better leaders to rule us. This will be the best way of empowering ‘we’ the people of India.

---

[1] Need to Amend a Constitution and Doctrine of Basic Features, by Dr. Ashok Dhamija, 2007, published by Wadhwa and Company Nagpur, New Delhi, pp. 470-71.

[2] Union of India v. Association for Democratic Reforms and Another,  (2002) 5 SCC 294 : 2002 AIR 2112

[3] Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr., AIR 1973 SC 1461

Bombay HC orders Mumbai Police to prosecute Akshay Kumar and Twinkle Khanna

Sanjay Dutt is in Jail. Salman Khan is being prosecuted for culpable homicide. Shiney Ahuja has a rape case pending against him. Famous director Madhur Bhandarkar has also seen the jail. Fardeen Khan was arrested for attempting to buying narcotic drugs. Suraj Pancholi the actor who is yet to be launched is accused of abetment to suicide.

After so many big names of the bollywood being arrested, it seems that it may be the turn of Akshay Kumar to pay a visit to the jail.

The Bombay High Court has ordered the Mumbai Police to prosecute Akshay Kumar and his wife Twnikle Khanna for an act of obscenity done during the promotion of a popular clothing brand.

How cool do we all (the young guns) think of biking

The recent shooting incident by the police left the Police Authority to answer innumerable questions as to what was the need of taking a biker's (Karan Pandey)life  along with a brutal injury to his mate (Punit Sharma) while they thought of enjoying with friends while riding their bikes. Do we all get the answers we want?

The next question to my mind is why are police authorities concerned about people driving their bikes in midnight when there isn’t any kind of traffic on the roads and why do police let these people do what they want. The answer to this comes here: Delhi is a city with young boys in whom there’s a rush as to things they find attractive and things which they consider would provide them with a big man’s popularity. Do all Stuntmen want to become Craig Jones?

Under the Section 189, Motor Vehicle Act: Racing or speeding in any public place without any written consent of the state government SHALL be punishable with term of 6 months imprisonment and repeating the same offence could lead to further trouble. Basically, the roads have been full of illegality and such kind of violations and now we all rise up to this issue. Why?? Considering the fact that such illegality won’t be tolerated it’s completely up to us are we ready to borne the punishment or follow the norms that society has created for us. The newly built Buddh Circuit has been created for people to ride their vehicles in whichever way they want, leading to certain safety for people to walk on the roads and for lesser accidents on our streets.

Supreme Court verdict - NEET exam no more!

Today, the Supreme Court of India has quashed the notification of the Medical Council of India for a NEET exam (National Eligibility-cum-Entrance Test ) which was an integrated exam for all the M.B.B.S. Seats, B.D.S. Seats and Post Graduation Seats in all the colleges of India.

A common merit list would be made on whose basis, the students would be admitted in colleges. It was an All India Entrance Exam.

A full bench of the Supreme Court was sitting to hear the constitutional validity of this case. In a 2:1 majority judgment, the NEET exam was called unconstitutional and the notification of MCI was struck down. The apex court has however made it clear that this judgment will not apply to the admissions which have already taken place and it will apply to the future admissions.

The majority verdict by Chief Justice Altamas Kabir and Justice Vikramajit Sen have stated that the MCI is not having the required authority to prescribe an All India Medical Entrance Test. They have stated that this notification by the MCI was violating the Articles 19, 25, 26, 29 and 30 of the Indian Constitution.

Supreme Court of India warns all Advocates-on-Record

For filing a case in the Supreme Court of India, one has to engage an Advocate-on-record. A normal advocate cannot file a case in his name in the  Supreme Court of India unless  he is an Advocate-on-record. An advocate who is enrolled in the bar council of any state for atleast 5 years can sit in the exam to become an AOR. This AOR( Advocate-on-record) generally appoints an arguing counsel to appear before the Hon'ble Court. 

On the 14th of July 2013, the Supreme Court of India, constituting the bench of Justice B.S. Chauhan and Justice S.A. Bobde, warned all the advocates-on-record from lending their name for a filing of cases and not taking interest them. The bench heard an application filed by Mohammed Israfil for restoration of appeal which stood dismissed in default by an order on 8th March. 

In the case, the Hon'ble Bench had observed that many contents of the application seemed to be factually incorrect. So the bench wanted some explaination and clarification from the Advocate-on-record of the case who had signed the application for restoration. When the matter was taken up, it was learnt that the AOR had refused to come to the court. The Hon'ble Court was also informed that AOR Rameshwar Prasad Goyal has filed a large number of cases, but never appears before the court. Since, the Advocate-on-record had refused to come to the court, the application was dismissed along with which a show cause notice was issued to the AOR. 

In the show cause notice issued to the AOR, the Hon'ble Supreme Court of India has asked the AOR, why his license as an AOR should not be cancelled/suspended. He was given a time of three weeks to file a reply. The bench while issuing the show cause notice had said that his conduct obstructed the administration of justice and resulted multiplicity of proceedings. 

This show cause notice may be a warning for all the other AORs who are not present in the court during the case and don't take interest in the court proceedings.

Mandatory Death Penalty in Honour Killing and Police Encounter cases

[This article was published in the Madras Law Journal (Criminal) (25-06-2011) with citation (2011) 2 MLJ (CRL) at Journal Page No. 49] Way back in 1980, a 5-Judge Constitution Bench of Supreme Court held that death penalty can be awarded only in the rarest of rare cases when the alternative option is unquestionably foreclosed. ¹ In 1983, another 5-Judge Constitution Bench of the Supreme Court declared that the provision of mandatory death penalty under Section 303 of the Indian Penal Code (IPC) was unconstitutional. ² However, now in 2011, a two-Judge Bench of the Supreme Court, in two separate judgments delivered in quick succession within a week, directed that mandatory death penalty be awarded in the cases of honour killing and police encounters, respectively, by treating all such cases as “rarest of rare”. These two recent judgments are in the cases of Bhagwan Dass v. State (NCT) of Delhi, ³ and Prakash Kadam v. Ramprasad Vishwanath Gupta, ⁴ respectively, delivered by a bench of Justice Markandey Katju and Justice Gyan Sudha Misra.

This article examines, in detail, the legality of these two recent judgments in the light of the Constitutional and legal provisions, the aforesaid two Constitution Bench judgments of the Supreme Court, and other relevant judgments. It is made clear at the outset itself that I do not, in any way, undermine the seriousness of the offence of an honour killing or a fake police encounter; the whole purpose of this article is only to examine the legality of a mandatory death penalty in such cases instead of leaving the discretion in the matter of penalty to the courts concerned depending upon the facts and circumstances of the case, inter alia, including the mitigating circumstances.

In the aforesaid recent case of Bhagwan Dass, the Supreme Court directed as under:

“In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them.

Let a copy of this judgment be sent to the Registrar Generals/Registrars of all the High Courts who shall circulate the same to all Judges of the Courts. The Registrar General / Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/Additional Sessions Judges in the State / Union Territories. … …”

Likewise, in the said case of Prakash Kadam, the Supreme Court held as under:

“25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.

26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.”

Both these judgments have been taken very positively by the common man and have been widely appreciated by them. These decisions may appear to be good news for the public, but in my humble and respectful opinion, from the legal jurisprudence point of view, both the judgments are legally not sound and suffer from various legal defects.

Before getting into the details of the defects, let’s first see the general provision for death penalty provided by Indian law for the offence of murder.

What Effective Measures Should Be Implemented To Eliminate The Inordinate Delay In Disposal Of Cases Pending In The Indian Courts?

[This article was originally written for a legal essay competition and was awarded the 3rd prize]

Justice Shri V.R. Krishna Iyer once said, “Man lives in the short run, but litigation lives in the long run”, to which former President of India Dr. APJ Abdul Kalam said, “How true! I would say that it literally crawls in the long run.”

The Constitution of India gives a lot of importance to the concept of justice. The preamble states that Justice- social, economic and political shall be secured to all citizens of India. Furthermore the right to speedy and affordable justice has now been classified as a fundamental right included under Article 21. Also Article 39-A, one of the Directive Principles states “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” In spite of such importance given to the concept of justice in the mother of all laws in India, the present scenario shows a blatant disregard towards this concept and a whopping number of cases are pending at all levels of the judiciary.

According to the Court News April-June 2010, there are about 33,362 matters (excluding connected matters) pending in the Supreme Court as on 31-8-2010. The 21 High Courts have a total of 4,108,555 cases- civil and criminal- pending as on 31-3-2010. And pendency of civil and criminal cases at the end of 31-3-2010 in the District and Subordinate Courts in all States of India is a gigantic number of 27,374,908.

Another glaring instance of ‘justice delayed is justice denied’ is the recent judgment for the Bhopal Gas leak case, where more than 25 years was taken by the lowest court for its decision and the 25 years taken does not include an appeal. This was the world’s worst industrial disaster, where the accused were guilty of about 15 thousand deaths. The decision of the Chief Judicial Magistrate was pronounced in June 2010, whereas the incident took place way back in December 1984. Such is the situation in India!

There is one illusion to be cleared before we start to get into the causes for the pendency of cases. There are two main factors for such pendency, firstly that the rate of disposal of cases is slow and secondly and more importantly the rate of institution of cases is considerably high. It is very important for us to understand that pendency has been increasing not due to the rate of disposal of cases but due to the increasing rate of institution of cases. Statistics show that the rate of disposal of cases has improved drastically, but despite this, the pendency has been increasing, and the main reason of this can be attributed to the fact that number of cases being instituted every year is very high. This shows we need better infrastructure to deal with the increasing number of new cases.