IMPLICITY

The Right Not To Vote

Posted in Uncategorized by stories of an authentic self on November 4, 2009

The TOI Op-Ed a couple of days ago carried a write-up on the Maharashtra State elections, which saw the re-election of an admittedly inept government, as voters preferred stability over change. Among other things, the author discusses the  common Indian’s common election conundrum, particularly how we’re often forced to make a choice between the lesser of two evils, while voting for candidates. He goes on to suggest voters must be allowed to not vote for any of the candidates in the fray, by institutionalising the Right Not to Vote.

It is true that a None of The Above voting option (NOTA) would provide for a channel of communicating dissent against the candidates in the running. This would entail the introduction of a NOTA button on EVMs, allowing for a voter to choose to record a blank vote, to voice his dissatisfaction with all the candidates running for the constituency.

Currently, the closest thing to facilitating the option of casting a blank vote is Rule 49O of the Conduct of Election Rules, 1961, which provides for a voter enlisted in the electoral rolls to decide not to vote after his electoral roll number is registered in the register of voters, by conveying his decision to the presiding officer who should record such decision in the register of voters, against his name and signature. In such a case, the voter is deemed to have abstained from voting, as clarified by the Election Commission last year.

Rule 49O as it exists, is possibly meant to ward off the casting of bogus votes in the names of voters who are not voting. It most certainly is not meant to accord the right not to vote as secrecy of ballot must be ensured in casting even a blank vote. Rule 49O requires the voter to make the presiding officer aware of his decision to not vote. Also, the fact that EVMs do not allow for a NOTA vote is an indication that Rule 49O was not meant to accord a right to not vote.

Beyond this and more important, is the question of whether we even have a right to NOT vote.

In Union of India v. Association for Democratic Reforms (2002) and in PUCL v. Union of India (2003), the Supreme Court held that the right of a voter must be considered on two levels, first, as the right to cast a vote, and second, as the right to express choice of a particular candidate by ballot, in casting such vote. While the former falls within the purview of the right to vote (a statutory right under the Representation of Peoples Act), the latter is an exercise of the voter’s right to freedom of expression, under Article 19. Thus the freedom of expression is distinct from the right to vote.

Essentially, any right has both its positive as well as negative applications. And so, a conferral of a positive right necessarily results in the conferral of the corresponding negative right as well (not considering for the moment, the right to live and its negative right). Lifting off from the discussion in Rathinam v. Union of India regarding negative rights, the freedoms under Article 19 necessarily include the freedom not to as well (the freedom of speech includes the freedom not to speak, etc.). So long as the exercise of the negative right merely entails a suspension and not an extinction of the positive right, a positive right must includes its negative right as well.

In this light, I’m of the opinion that the positive freedom to choose any candidate must include the corresponding negative freedom as well. Therefore, the right not to express choice of any of the candidates must also be accorded to voters, as it would amount to a lawful exercise of the negative freedom. Therein lies the right not to vote.

However, before formally recognising the right to abstain from voting, it would be essential to make voting itself mandatory, so that every voter’s vote (blank or otherwise) is registered. The upshot of this is that no voter can just conveniently stay home on the day of the polls. Every voter must necessarily be present in the queue at the polling booth to record a blank vote.

The Election Commission in its Proposed Electoral Reforms suggested that the NOTA option be introduced in ballot papers and EVMs by introduction of the necessary changes in the Conduct of Election Rules, in order to enable voters to reject all the candidates in the fray. Also, in a recent petition before the Supreme Court, PUCL prayed for the striking down of Rule 49O, as it violates secrecy of ballot, as well as the introduction of the right of negative voting while simultaneously ensuring secrecy of vote, by making required provisions in EVMs and ballot papers. In February this year, the petition was however referred to the CJI for referral to a larger Bench for exposition of the law in deciding upon the matter.

Introducing a NOTA option would do a whole lot of good in checking criminalisation of politics. Also, registering and counting of blank votes, as is the process in  in Switzerland, Belgium, Spain and France makes known the current of dissent against the present candidates of the parties. Lastly, the prospect of a re-poll in the event that the number of NOTA votes is maximum in a constituency, must be explored. Some years ago, Mr.  Rajinder Sachar (who incidentally also was the counsel for PUCL in the 2009 case) argued that such a change must be provided for by legislation, as it would effectively act as a “warning to the political parties that decision about the choice of candidate is not the sole prerogative of a clique within the party“.

All in all, seems like a good idea to formally introduce the NOTA option in EVMs. In fact, voters, in protest against candidates in the running have gone ahead and abstained from voting, under Rule 49O, during Assembly elections this year, as reported here and here.

Update: For a critique of the 2009 PUCL case, check out the latest edition of the IJCL, in which Mr. Rajeev Kadambi argues on the same lines as regards the right not to vote!  Thanks to Swarup for the heads up!

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