The year 2013 was a landmark year in the modern history of India’s electoral polity. The human rights body- People’s Union for Civil Liberties had filed a writ petition to provide for the right of the voters to reject all the candidates. PUCL is a body formed by the prominent leader of emergency times, Jayaprakash Narayan in 1976, the same year which saw the passing of the 42nd constitutional amendment act, colloquially known as the mini-constitution. In its judgment, the Supreme court bench with three judges, the then chief justice of India P Sathasivam, Justice Ranjan Gogoi and Justice Ranjana Prakash Desai provided for the right to choose ‘None of the above’ candidates standing in polls to the voters. It also expanded the idea or the principle of secrecy to the vote of NOTA. The judgment did not however provide for the right to recall which is out of the horizon in the current Indian context. But, in an important step, the Supreme Court bench secured the right to secrecy for the voters who would go for the NOTA. There are two kinds of responses to this judgment in terms of how it was perceived by the observers and experts in the field of public policy. It was hailed as a decision which was the first step in the right direction in the long run of decriminalizing Indian politics, in a teleological way. On the other side, some feel that this step was not enough like Subhash Kashyap, a political expert and former Secretary-General of Lok Sabha. Before drawing any conclusion, it would be necessary for this discourse to dissect out the background in which the NOTA arrived.

Before the arrival of NOTA in India, there had been 13 countries which provided for ‘None of the above’ for their voters. Some prominent examples of countries having this provision are Belgium, Greece, France, Chile, and Bangladesh. Countries like Sweden and Finland provide for a blank vote and write in option where the voter can write the name of someone, she/ he might know, or even a fictional name. The state of Nevada in the United States of America provides for NOTA. Spain and Columbia also provide for the ‘None of the above’ vote provision in the form of blank vote to their voters. Hence, we see that the exact nature of the NOTA varies from one country to another from negative, neutral, or protest type or even putting forth someone’s name.

There had been a set of rules which needed to be followed at the polling stations in the time of elections. These are known as the Conduct of Election rules, 1961. Under these rules, two specific clauses were known to be in contradiction to the freedom of expression as enshrined in Article 19(1) (a) of the Indian constitution and Section 128 of Representation of People’s Act (RPA) 1951. In the judgment, the apex court of India observed that the rules 41(2) and 41(3) allowed for the identification of the voter who decides not to cast his vote in favor of any of the candidates. This is unreasonable and arbitrary, and it is ultra vires specifically of Section 128 of RPA 1951 which ensures the right of secrecy to the voter. The traditional norm required anyone who wished not to vote in favor of any of the candidates to return his/her ballot paper and get it marked as returned as per the rules 41(2) and 41(3) of the Conduct of election rules, 1961. It was possible before the introduction of the Electronic Voting Machine in 1998 to place one’s opinion of rejecting all the candidates by putting in the ballot paper without marking any choice. It became impossible after the introduction of the EVM due to other clauses in the ‘conduct of election rules’. Further, Rule 49(O), under the conduct of election rules, 1961, well known among the people having performed the functions of electoral polling officials, required such voters to register in Form 17A with signature and/or thumb impression. Article 19(1)(a) of the Indian constitution ensures freedom of expression which stands violated in such cases where the voter is made to inadvertently express his rejection of all the candidates. Section 79 (d) of the Representation of People’s Act 1951, guarantees the right to stand or not stand in the election, to vote and to ‘not vote’ as well. Hence, when the voter, who wishes not to vote for any of the candidates, is made to complete the formalities under the 1961 rules of the conduct of the election, it is violative of the principle of freedom of expression.  The Supreme Court observed that the right to ‘not vote’ (Section 79(d) RPA 1951) is contained in the right of expression of a voter (Article 19(1)(a)). Hence, the Apex court passed the judgment under which not only the voter was given the right to press the ‘None of the above’ button, but also maintained that the right to secrecy is honored by the polling officials for the voter’s opinion as per section 128 of RPA 1951. This essentially removed the requirement under the rule 49(O) and filling up of the Form 17-A.

Has the introduction of the ‘None of the Above’ option in the electoral voting system made an impact? It had been observed that before the judgment came, the cases of voters not willing to vote for any of the candidates were very few. Since independence, India has been following the ‘first past the post’ system for elections to the Lok Sabha and the Legislative assemblies, the lower houses at the central and the state levels respectively. In this system, the candidate obtaining the highest number of votes in a particular constituency gets elected. The result is not affected even if the majority of the votes are cast against that candidate. This means that even if most of the votes have been cast as NOTA in a constituency, then also the candidate with the highest number of the remaining votes in his favor will win. It can be better grasped when one realizes that an MP or MLA might be sitting in the assembly house(s) with as little as 15-20 % of the total votes. This is the reason why many observers have stated that the judiciary had not in any way breached into the legislative domain by introducing the NOTA option in the election of the legislators. The Supreme Court, as per some observers had fallen short of a responsible judicial intervention step unintentionally, as the NOTA could have been made a powerful instrument of people’s opinion. It would have been normatively a better electoral dynamics if, in a constituency, the majority of the votes are pressed in NOTA, then none of the candidates would be elected. The re-election would then be conducted at the expense of the candidates and the parties involved not the public exchequer. In the current scenario even after the judgment, this picture is utopian at best. Since NOTA in the Indian electoral system does not amount to a rejection of the candidates.

Despite its shortcomings, the NOTA option had been hailed by the enthusiasts as a pointer to decriminalize Indian politics. But skeptics feel that it has not brought in the needed momentum in the decriminalization process. Former Chief Election Commissioner, S.Y.Qureshi had stated that in case there are 100 available votes and 99 people have cast NOTA and a candidate has got a single vote, then also that candidate wins under the first past the post system. A concrete step towards decriminalization could have been in the form of setting limits on the expenditure by the political parties before the elections. As of now, there is a limit on the expenditure by the candidates, not the political parties. Fixing a ceiling of expenditure will not be feasible to that extent as there are numerous routes through which funding can be expressed in the public domain by the parties. The introduction of the electoral bonds in 2017 has to a great extent exacerbated the disclosure scenario for the political funding edifice. But, a group of proposals by the former CEC S.Y. Qureshi and political activist Yogendra Yadav which include the idea to set up a separate electoral fund in an escrow account which will serve as a metric of electoral performance can help to a certain extent. The proposals include the idea of maintaining expenditure from that account which would be reimbursed after the elections based on the performance of the candidates. They also stated that interference of legislature and executive in the election violates the fundamental right to an independent election process. Both have also expressed their concern in the way the electoral bonds helped crony capitalism fund electoral politics since 2017.

It should be kept in mind that in the UK, from where the first past the post system has been adopted in India, the deliberative assembly has taken up discussions time and again to bring in modifications in their election system. A small neighboring country like Nepal has also taken steps like combining the first past the post system and proportional representational system to bring in more representations from a diverse population. It behooves the leaders and the political experts in New Delhi to keep these developments around the world in the electoral policy calculus while taking up issues related to elections through their parliamentary standing committees. Nothing can be more shameful when legislators sit in the parliament, especially the Lok Sabha, with the NOTA pressed against them and having less than the majority of votes cast in their favor, in a country identified as the largest democracy in the world.