With India launching into its 18th general elections on April 19, the imperative that voters turn out to the polls has dominated public discourse. As India is the world’s largest constitutional democracy, each citizen must responsibly and proactively participate in the process that will decide the next five years of the nation’s governance. The incumbent government of India recently dubbed the nation the ‘Mother of Democracy’. What naturally flows from this is the right of Indians to vote for its new leaders. But does, or rather, should that right also include the right to abstain from voting for anyone at all?
The Supreme Court introduces NOTA
More than a decade ago, the Supreme Court of India answered this question through its landmark judgment in People’s Union for Civil Liberties v. Union of India (2013), 10 SCC 1, by introducing the None of the Above (‘NOTA’) button on Electronic Voting Machines (‘EVM’) used to record the votes of the electorate. This meant that a person who wishes to exercise their right to vote, but does not agree with any of the political candidates/parties contesting the elections, can cast their vote in favor of NOTA. This can also be construed as the voter’s expression of disagreement and dissent against all candidates. The Supreme Court observed that introducing the NOTA button will inter alia: (i) accelerate effective political participation from those who do not agree with any of the political candidates; and (ii) compel political parties to nominate sound candidates with integrity, failing which they might lose precious votes to NOTA.
Before the 2013 decision in People’s Union for Civil Liberties, the Conduct of Election Rules, 1961 (‘1961 Rules’) provided for the procedure to be followed in case a voter does not wish to vote for a particular candidate. The 1961 Rules provided for a register of all voters to be maintained (in the format prescribed in Form 17-A). Rule 49 O of the 1961 Rules provided for the procedure in case electors decided not to vote.
If electors, after the addition of (i) their electoral roll number in the register of voters (Form 17-A of the 1961 Rules); and (ii) their signature or thumb impression thereon (as required under sub-rule (1) of rule 49 L of the 1961 Rules), decided not to record their vote, a remark to this effect was made against their entry by the presiding officer. This remark would categorically state that the elector has chosen not to vote. Further, such electors were required to enter their signature or thumb impression against the remark, so as to confirm the renouncement of their vote.
This procedure was held to be arbitrary and violative of Article 14, 19(1)(a) and 21 of the Constitution of India and Sections 79(d) and 128 of The Representation of the People Act, 1951 for, inter alia, violation of the electors’ secrecy. It was also struck down for distinguishing the ‘non-voting electors’ from those who chose to cast their vote. The Supreme Court opined that selective secrecy cannot be sustained insofar as the secrecy of those willingly voting is maintained while those who choose to not vote are made to declare such forfeiture.
In light of this, the Supreme Court in People’s Union for Civil Liberties directed the Election Commission of India (the Constitutional body established to conduct and regulate elections in India) to introduce the NOTA button, so that the voters who decide not to vote for any of the candidates are able to exercise their right not to vote while maintaining their right to secrecy.
Thus, as observed by the apex court, protest voting is intrinsic to a vibrant democracy. Having said that, it becomes imperative to analyze whether the practice of protest voting in the context of NOTA contributes to the fabric of democracy and elections in India.
A glimpse into India’s elections
Indian elections are divided into state assembly elections for choosing the government of an individual state, and general elections to the national parliament for choosing the federal government of the Union of India. India follows the ‘simple majority’ system, also known as the ‘First Pass the Post’ system. The electors vote for a particular representative from their constituency, who, if elected, will occupy a seat in the legislature from that constituency. These seats are then added up to calculate the total seats won by a political party. If the political party can secure more than 50% of the seats in the legislature, it is invited to form a government.
The general elections in India are conducted every five years to vote for members of the Lok Sabha (lower house of the national parliament). For the purpose of constituting the Lok Sabha, the whole country has been divided into 543 parliamentary constituencies. Thus, if a political party or an alliance of parties can secure more than 50% of 543 seats (i.e. 273 seats or more) in the Lok Sabha, that party will form the next government of India.
In the recently concluded state elections of 2023, for the states of Chhattisgarh, Madhya Pradesh, Rajasthan, and Telangana, the NOTA votes in as many as 47 seats/constituencies surpassed the margin of victory. For example, if the candidate of party A lost to the candidate of party B by 10 votes for a particular seat, the NOTA votes for that particular seat totaled more than 10 votes. This means that had the NOTA voters actually voted for the candidate from party A instead of not voting for either, the result of the election would completely change, and the candidate from party A would be elected.
In such an instance, one must ask themselves: Have we been looking at the concept of protest voting wrongly? Instead of expressing one’s protest by not voting for anybody, would it not make more sense to vote for the most favored candidate out of the options available? In other words: will voting for the lesser of the evils benefit democracy more than voting for none at all?
In a federal democracy such as India, elections are meant to choose a candidate to address the local concerns of their constituency. However, the idea of voting for the next government of India often clouds judgments, resulting in voters supporting a political party rather than a local candidate. They end up voting to bring a political party into power, and not a candidate that would represent their constituency. To add to this, politics often divides ideologies on religious, socio-economic, and cultural grounds. This results in votes in favor of the political party that best represents the voters’ personal beliefs. In such cases, each and every vote in favor of a political party is crucial in deciding the fate of the country, and not voting for anyone is as good as voting in favour of the party with the most devout supporters.
It is also imperative to acknowledge the diversity of the electorate in a country such as India. Religious and cultural fanaticism often produces fringe voters who will vote for a particular political party at all costs. In such an instance, NOTA voting betrays the idea of democratic elections by allowing devout supporters to bring their favored political party to power. Instead of opposing such fanaticism-driven voting, NOTA votes increase the chances of such votes prevailing. This leads to an unfortunate implication that NOTA voting, in fact, disincentivises the parliamentary democratic procedure, for protest voting serves only as a means of activism and not an act of responsible voting.
Is protest voting beneficial?
Protest voting is not wrong. However, the approach to such protest is misconceived. One may protest against a political party or an individual candidate coming to power by voting against such candidate or party. But registering your protest by voting for no candidate serves very little purpose.
As for the persisting proponents of the NOTA button, an argument can be made that NOTA deters political parties from nominating unruly and immoral candidates. The Supreme Court in People’s Union for Civil Liberties observed that it is crucial to elect the most qualified individuals as representatives for effective governance. This requires candidates with strong moral and ethical principles who earn support through positive votes. Therefore, in a democracy, voters should have the option to select NOTA, encouraging political parties to nominate better candidates. According to the apex court, this underscores the importance of negative voting in ensuring quality representation. However, this proposition does not hold much water.
In a report titled ‘Analysis of Sitting MPs from Lok Sabha and Rajya Sabha of India 2023’ by the Association for Democratic Records (ADR) and New Election Watch (NEW), it was revealed that 40% of the sitting Members of Parliament (MPs) in India have declared criminal cases against them, with 25% of legislators being accused of serious criminal offenses including murder, attempt to murder, kidnapping and crimes against women.
As is glaringly obvious, the underlying reasons for introducing the option to vote for ‘NOTA’, which was to ensure that political parties are deterred from making uninformed decisions and judiciously screen their political candidates, has not been achieved.
Further, the Supreme Court may have misjudged the meaning of “negative voting”. While negative voting could certainly mean negating the votes of a particular candidate or party, it could not mean the absence of the vote itself. The NOTA button is treated as a “fictional electoral candidate”. If NOTA receives the majority votes, it can never be elected. The Election Commission of India has clarified that the votes in favour of NOTA cannot be treated as valid votes, and will be discounted for determining the result of the election. Thus, even if the number of votes for NOTA is more than the number of votes secured by the candidates, the candidate who secures the highest number of votes amongst the contesting candidates is declared as the winner. The NOTA button can be compared to the option of abstaining in parliamentary proceedings. While the vote is recorded, it serves no purpose in calculating the final outcome of the vote.
The way forward
The option to vote for NOTA in its existing form does not contribute effectively to the democratic process of elections. A potential avenue worth exploring is to strengthen the currently toothless NOTA button.
In the last Indian general elections held in 2019, various constituencies saw skyrocketing votes in favor of NOTA. Gopalganj in Bihar had topped the charts with 51,660 votes, while Araku in Madhya Pradesh came in second with 47,977 votes for NOTA. In April 2024, over 2.5 lakh (0.25 million) residents of 22 villages of Chandigarh (city in the state of Punjab) have announced that if their villages are not developed and the prevalent issues are not addressed they would press the NOTA button in the upcoming elections. This simply means that the electorate is dissatisfied with the current way of governance. The magnitude of NOTA votes is alarming, and should be taken seriously. These votes not only reflect people’s dissatisfaction towards their representatives but also serve as a hotbed of democratic dissent. We must find a way to use this dissent to bring meaningful change.
In the event NOTA gets the highest votes as compared to a set of political candidates, the Election Commission should consider declaring that election void and hold fresh elections with a different set of candidates. The reason is simple: if most of the voters are not in favour of electing a set of candidates, they should be deemed unfit to represent the voters. Instead, a fresh election with new faces may bolster public participation in the elections. By this, the voters will feel heard, thereby increasing voter turnout. Such right to reject political candidates will compel political parties to nominate honest candidates, fulfilling the fundamental reason for introducing the NOTA button.
India follows a system of checks and balances, where each limb of the State (the legislature, executive and judiciary) has a duty to counter abuse of power by the other limbs. It is only natural for the electorate of the biggest constitutional democracy in the world to partake in this system of checks and balances, and reject those who are considered unfit to participate in the governance of the country. Till the time this is done, NOTA can never become the intended ammunition in the electorate’s armory.
Arvind P. Bhanu is the Acting Director of Amity Law School, Delhi (GGSIPU) and Additional Director of Amity Law School, Noida. Sambhav Sharma is an associate at Shardul Amarchand Mangaldas & Co., New Delhi. Kavya Tyagi is a first year law student at Amity Law School, Noida and Research Assistant to Dr. Arvind P. Bhanu.
