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Mainstream, VOL XLIX, No 38, September 10, 2011

Electoral Reform — Will The Central Government Redeem Itself?

Tuesday 13 September 2011, by Rajindar Sachar

When Anna Hazare gave up his fast, he announced that the next movement is for electoral reform and especially prioritised the right to reject a candidate at the elections and the right to recall a legislator earlier than the end of his term.

The Central Government is seeking to project itself as responsive to public opinion. Here then is an opportunity to do so. I say this because the public demand for effectuating the right to reject vote or more clearly “None of the Above” (NOTA) is very easy to effectuate. The Representation of People Act, 1951 and its rules provide a detailed mechanism for standing and voting at elections. The Government of India has framed the Conduct of Election Rules, 1961 to provide the manner how votes are to be cast, and the precaution to maintain the secrecy of voting which is absolutely necessary for a healthy democracy.

Prior to the introduction of the Electronic Voting Machine (EVM), voting was by means of ballot paper. Rule 49(M) provides for maintaining secrecy of the voting procedure by the EVM, whereby the voter presses the button against the name of the candidate for whom he intends to vote.

Rule 49(O) further provides that if an elector decides not to record his vote, a remark will be made by the presiding officer on Form 17, and the signature of the voter shall also be taken. But this procedure is faulty and outdated, because it does not take into account the mode of change of voting to the EVM instead of by ballot paper. This procedure is also illegal because by this the identity of the voter who decides not to vote will be disclosed thus violating the fundamental right of voting in secrecy.

Realising this anomaly and lacuna, the Election Commission of India as far back as 2001 and ever since has been writing to the Central Government to make necessary modification in the rules by providing a slot of NOTA in the EVM.

Finding the inaction of the government, the People’s Union for Civil Liberties (PUCL) filed a writ petition in 2004 in the Supreme Court asking for direction to the Central Government to suitably amend Rule 49(O). The writ petition was heard by a two-judge Bench which referred it to a larger Bench in 2009—because of the congestion in the Supreme Court, the matter has not yet come up for hearing. But notwithstanding the pendency, in law there is no prohibition to make the necessary change by amending Rule 49(O) by providing “NOTA”.

I believe that by introduction of NOTA in the EVM a radical change will be brought about in the political arena. At present the voter is treated as a dumb-driven cattle who must choose one candidate, even if he finds all of them to be thoroughly undesirable. A voter at present has no role in selecting the candidate, as in the US primaries and even in Britain by constituency members. Here the selection of a candidate is done by a small cabal of party leaders and in some parties even by one or two so-called super leaders. The provision of NOTA voting will make a sea-change in the power equation in favour of the small voter as against the monster of a big political party. Such a provision will enable the voter to exercise his right in secrecy and to send a message of his anger at the unsuitability of contesting candidates and their political mentors.

It is not as if at present many voters will not like to record their disapprobation of the contesting candidates but they are afraid to do so because of the unholy alliance of the mafia crowd with many of the contesting candidates. But with NOTA being available in the voting machine, the voter will be able to speak his mind without fear and thus defeat the politicali-sation of criminals.

At present, when voters feel disgusted at the nomination of undesirable candidates, they just sit at home and sulk, but are not able to convey their resentment effectively. But in the changed position the voter will be assured of secrecy and will exercise his right which will send a strong message to the smug political bosses against their manipulation and force them to listen to the small man/woman who in fact has the power with his/her little finger on the button to decide the fate of the so-called tallest of them.

Thus NOTA can be effectuated immediately by the Central Government by amending the Rule, provided it is genuinely concerned with clean politics. The principles justifying NOTA are self-evident, namely,

(a) all legitimate consent requires the ability to withhold consent;

(b) would end the farce where voters are often forced to vote for the least unacceptable candidate, the all-too-familiar “lesser evil”;

(c ) voters would decide the fate of the political parties’ choices, instead of the parties deciding the voters’ choices;

(d) many voters and non-voters, who now register their disapproval of all candidates for an office by not voting, could cast a meaningful vote;

(e) improves checks and balances between voters and political parties.
In any election when “NOTA” will be put on the EVM, the list of candidates would be followed by the button of “NOTA”. If NOTA gets more votes than any of the candidates, then no one is declared elected; instead, a follow-up by-election with new candidates, the old being ineligible, would be held to fill the seat, until a candidate wins a plurality of votes among all other candidates including “NOTA”.

NOTA has many thoughtful advocates in various countries in the world including the most well-known consumer activist, Ralph Nader. The USA, Australia, Norway and other countries have a very strong constituency favouring NOTA.

Of course, a legislation would need to be enacted to provide that if NOTA votes exceed the maximum cast for the highest vote-getting candidate, the election will be countermanded and a fresh election ordered. This change will be a warning to the political parties that the decision about the choice of candidate is not the sole prerogative of a clique within the party. It must involve the voters at the initial stage of selection. A wrong choice will result in fresh elections.

I feel the Central Government can redeem its self-damaging conduct during the Anna Hazare fast (as even some of the Ministers have said it openly) by immediately amending Rule 49(O), as demanded by the Election Commission since 2001 and by providing a slot of NOTA in the voting machine straightaway for all future elections, thus recognising the supremacy of the voters.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims, and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23@bol.net.in

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