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.]
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
