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In a path-breaking judgment, the Supreme Court on Friday held that voters have a right to reject all candidates contesting polls in a constituency by pressing a button for negative vote, saying this would compel political parties to field "sound" candidates who are known for their integrity.
The Election Commission will now have to provide an option for negative voting in the electronic voting machines and ballot papers. The verdict, however, appeared to raise questions over what happens if majority of electorate in a constituency vote negatively.
Election Commission sources said though the electoral law on the issue is silent, the new 'none of the above' option may virtually amount to an invalid vote and those getting the highest votes among the candidates will be declared the winner.
The apex court said there is a "dire need" of negative voting which will bring "systemic change" in the election process as "the political parties will be forced to accept the will of the people" and field clean candidates when a large number of people express their disapproval with the candidates being put up by them. It said casting of the vote is a facet of the right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution and "not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e. the right to liberty".
While the Congress and Bharatiya Janata Party reacted cautiously to the verdict, the Communist Party of India-Marxist said it has created an "abnormal situation" that needs to be corrected.
A bench headed by Chief Justice P Sathasivam said that negative voting, which is prevalent only in 13 countries across the world, would accelerate effective political participation of people and will "foster the purity of the electoral process" and "it serves a very fundamental and essential part of a vibrant democracy.
"For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote.
"Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting," the bench said its 50-page verdict.
The bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said the provision of negative voting would be in the interest of promoting democracy, as it would send clear signals to political parties and their candidates as to what the electorate think about them.
"The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one," it said while directing the election commission to provide 'none of the above' option in ballot papers or EVMs.
The verdict, which is likely to encourage people to go to the polling booth to express disapproval against contestants, said, "By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered."
"We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people," it said.
The bench asked the Commission to implement the negative voting system either in a phased manner or at a time with the assistance of the Centre and directed the government to provide necessary help for implementation of its direction.
"We direct the Commission to provide necessary provision in the ballot papers/EVMs and another button called ‘none of the above’ may be provided in 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 not to vote while maintaining their right of secrecy," it said.
Introducing the concept of negative voting, the apex court mentioned the voting machines in the Parliament have "three buttons, namely, YES, NOES, and ABSTAIN".
"Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote," the bench said.
The apex court said that the option of NOTA should be given at the end of the column containing the names of the candidates. The verdict is the latest in the part of series of judgments passed by the apex court on the election process.
Earlier, the apex court had restrained people in custody from contesting elections. It has also ruled that MPs and MLAs would stand disqualified after being convicted of serious crimes. The government, however, has brought an ordinance seeking to negate the court's judgment striking down a provision in the electoral law that protected convicted lawmakers from immediate disqualification.
The commission had submitted that EVMs can list just 64 candidates and it is in the process of developing balloting unit with 200 panels. The bench also directed that the secrecy of votes caste under NOTA be maintained by the Commission.
"Right to vote as well as right not to vote have been statutorily recognised under Section 79(d) of the Representation of People's Act and Rules 41(2) & (3) and 49-O of the Rules respectively. Whether a voter decides to cast his vote or decides not to cast his vote, in both cases, secrecy has to be maintained," the bench said.
It cannot be said that if a voter decides to cast his vote, secrecy will be maintained under Section 128 of the RP Act read with relevant rules and if in case a voter decides not to cast his vote, secrecy will not be maintained, the court observed.
"Therefore, a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows the secrecy to be violated, is arbitrary, unreasonable and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of the RP Act," the bench said.
Under the existing provisions of Section 49(O) of the Representation of People Act, a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said elector.
Enumerating on the negative voting, the bench said, "Article 19 guarantees all individuals the right to speak, criticise, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression."
"Eventually, voters’ participation explains the strength of the democracy. Lesser voter participation is the rejection of commitment to democracy slowly but definitely whereas larger participation is better for the democracy. But, there is no yardstick to determine what the correct and right voter participation is. If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same. The voters’ participation in election is indeed the participation in the democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India," it said.
The court passed the order on a PIL filed by an NGO, People's Union for Civil Liberties, which had submitted that voters be given the right to negative voting.
Photograph: Arko Dutta/Reuters