MAKING NOTA COUNT: For The ECI to Hide Behind Complexities so as to Disenfranchise Voters, is Inexcusable.

-by Ankit Kaushik

In the clamour and din of the General Election of 2019, as the media’s spotlight shone on the winning candidates proudly performing their victory laps, the NOTA stood humbly in a corner. Even as the NOTA receives the same space on the EVM as any other candidate, it has no party workers campaigning for it; it did not make a single political speech in the six years since its birth, and it certainly did not attempt to bribe the voters through promises of minimum income, nor did it promote nationalism in the garb of patriotism tailored to its own needs. Yet, it garnered more votes than most candidates who threw their hats in the ring.

Reportedly, more than sixty-four lakh Indians stepped out of the comforts (and/or discomforts) and bee-lined to the polling booth under the sweltering Indian sun, to cast a NOTA vote. These men and women together constituted a staggering 1.04 per cent of all votes cast. They knew full well that it is unlikely to influence the final results.

It is not a coincidence that some of the areas where NOTA voting is significantly higher than the national average are less developed than the rest of the country. To illustrate, the figures for NOTA votes stood at 5.04 per cent in Gopalganj (Bihar); 4.51 per cent in Paschim Champaran (Bihar); 4.16 per cent in Jamui (Bihar); 3.73 per cent in Nawada (Bihar); 3.37 per cent in Jahanabad (Bihar); and, 3.35 per cent in Madhepura (Bihar). In contrast to the Per Capita GDP of India pegged at $ 1461.67 (World Bank, 2011), all these districts fell far behind in terms of Per Capita Gross District Domestic Product (PCGDDP) of the same year. As per the Economic Survey of Bihar, Gopalganj was ranked 12th within the state of Bihar with a PCGDDP of Rs. 12,129; Jamui was ranked 25th with PCGDDP of Rs. 10,166, Nawada ranked 30th with a PCGDDP of Rs. 9,560; Jehanabad ranked 17th with a PCGDDP of Rs. 11,183; and Madhepura ranked 36th with a PCGDDP of Rs. 8,609.

In light of the same, it would be highly erroneous to dismiss the NOTA votes as a case of mere political apathy of the voters who are nevertheless allured by the voting process. The intent behind the introduction of NOTA is best gauged from the Supreme Court (SC) judgment in PUCL v. UoI (2013) where the court sought to give the voter aright to express his disapproval with the kind of candidates that are being put up by the political parties.” This disapproval, it hoped, would force the political parties “to accept the will of the people and field candidates who are known for their integrity.”

Prior to the PUCL (2013) judgment as well, the 170th Report of the Law Commission of India (1999) had recommended an alternative method of election wherein the elector was to be empowered with a ‘negative vote,’ which was to be counted as a valid vote. In 2004, the Election Commission of India (ECI) itself had recommended the inclusion of NOTA, as well as the amendment of the Conduct of Election Rules, 1961 (Conduct Rules) to facilitate the same.

The PUCL (2013) ruling, however, was misapplied by the ECI, which, in a step-motherly fashion, made the NOTA institutionally invalid while officially sanctioning it. Thus began NOTA’s Cinderella story. As against the intent of the SC and instead of amending the Conduct Rules, the ECI chose to equate the NOTA with a ‘voter deciding not to vote’ under the existent Rule 49(O) and mandated therefore that a NOTA vote ‘shall have the same effect as not voting’ at all. In the event of NOTA securing more votes than the candidates, the candidate with the highest number of votes would be declared the winner.

Aiding the ECI in this unjust endeavour is the ambiguity surrounding the nature of the right to vote. Until 2002, the SC repeatedly affirmed that the right to vote was neither a civil right nor a common law right, but merely a statutory right. In the UoI v. ADR  (2002) however, the SC held that a ‘voter’s speech or expression… would include casting of votes, that is to say, voter speaks out or expresses by casting a vote.

In PUCL v. UoI (2003), Reddi J. opined that the right to vote was most certainly a constitutional right, if not a fundamental right. In Kuldip Nayar v. UoI (2006), however, a five-judge bench of the SC created a distinction between the right to vote as statutory right and the freedom to vote as a constitutional right. In 2012, a three-judge bench of SC in DMDK v. ECI (2012), again held the right to vote itself to be a constitutional right. However, in the PUCL (2013) case, another three-judge bench affirmed the decision of the Kuldip Nayar case. In Rajbala v. State of Haryana (2015), a two-judge bench of the SC considered  only the PUCL (2003) and DMDK cases, to state that the right to vote is a constitutional right.

The confusion around the right to vote highlighted above, by corollary, extends to the right to ‘negative vote.’ Nevertheless, for the ECI to hide behind complexities so as to disenfranchise voters is inexcusable. Its treatment of NOTA, not only suppresses the spirit of the PUCL (2013) judgment but also actively subverts constitutionally mandated democratic routines. NOTA votes are an unambiguous and resolute form of protest which demand not only an official sanction but institutional validation. Given that the role of the ECI is to ensure free and fair elections; it cannot be unequal, unfair, arbitrary and unreasonable in its treatment of a vote given by a person against all candidates in much the same manner as another fellow citizen who votes in favour of one. The ECI should make NOTA count as a valid vote.

The views are personal.


Ankit Kaushik is a graduate from National Law University Jodhpur. Presently, he is a Research Associate at National Law University Delhi.

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