Written by Ananya Rai.
Fifth Year, BA. LLB. Symbiosis Law School, Pune.
Source: The Financial Express
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The right to vote is neither a fundamental right nor a constitutional right, but a statutory right.  Although the system of elections was introduced in India in 1951, it has undergone reforms in various stages. The introduction of the option of 'None of the Above', or NOTA was a landmark in the sphere of electoral policy.  This article attempts to analyze the merits, demerits, and relevance of the NOTA option in the backdrop of present electoral considerations in the country. It traces the prominence of the step with reference to existing case laws and statutes. The article concludes with suggestions to help make the step more efficient at fulfilling the essence of democracy.
Keywords: NOTA, Voters, Secrecy, Elections
Any democracy balances on the inherent choice of its people to determine who governs them. As a matter of principle and procedure, this system of universal suffrage grants every individual the sole right to opt a person for a particular portfolio, in a free and fair manner.  The Constitution of India incorporates a parliamentary form of governance that relies on a multi-party system. The right of a person to choose his/her leaders is embedded within Article 19 of the Constitution, which enables a citizen the freedom of speech, criticism, and expression of opposition on any platform. Correspondingly, preventing a person from expressing a negative vote would trounce both Article 19 and the ‘right to liberty’ provided under Article 21. 
The option of 'None of the Above', or NOTA for short is an electoral choice given to voters who decide to reject all of the candidates at a poll. It is a formal vote of rejection of all options on the list. It is similar to the right to abstain from voting exercised by parliamentarians during voting in the houses.  Countries such as France, Brazil, Greece, Bangladesh, and Spain have incorporated this option in their electoral mechanisms. The NOTA option is provided at the last spot on the list of candidates in the Electoral Voting Machine (EVM). The Election Commission of India has allotted the ‘mark of the cross’ (X) as the official symbol for ‘NOTA.’ Since a cross represents denial or rejection globally, it is convenient for people to select it as per choice.
The Option Of 'None Of The Above'
As per the ruling of the Supreme court of India on 27 September 2013, in PUCL v. Union Of India , directing the Election Commission of India (ECI) to enable the option of NOTA as a part of the electoral reforms, the same was set up on 18 September 2015, nationwide. The rationale underlying the introduction of NOTA was to provide an opportunity for voters not willing to vote in favor of any candidate, to cast a vote, thus exercising their right as a citizen. The supreme court reasoned that people who abstain from voting, citing the reason of incompetency or dissatisfaction in the candidates contesting in the election, would take part in the elections. The option of NOTA would entail that a citizen truly has unconditional freedom of choice in voting. Although it is the political parties who select candidates to contest in an election, voters would not have to settle while exercising their right and can have a stance of disapproval.
The option of NOTA not only provides a valid reason to citizens considering not voting, to vote, it also provides a detailed picture to political parties as to the standing of candidates in people's minds.  If the turnout of NOTA is a significant number, the political parties, undeniably would reconsider their choice of delivering tickets to those candidates again. If a noteworthy number of people are so distraught by the list of candidates, that after waiting in line at the election center and fulfilling formalities, choose to not vote for any of the candidates, then that would give parties a crystal clear picture of the dissatisfaction of the public and thus motivate them to give a chance to better candidates in the next elections. Therefore, it may be perceived as a boon to citizens in more ways than one.
NOTA stands on the basis that the right to vote functions hand in hand with the right to vote of disapproval. In the light of this, it must be understood that when democracy is ultimately founded on the platform of the choice of its citizens, voters must not be compelled to vote for a person, merely because voting for one candidate is mandatory.  As much as it is true that it is the choice of the party to select and enlist candidates to every constituency, they ipso facto have the responsibility to provide voters with options of meritorious persons, from which they are to choose one.  In any other case, if a considerable number of people vote for a candidate out of compulsion and not out of choice, then the concept of freedom to vote is vanquished and leadership would be bestowed on a person due to stringent rules, and not plain merit.
It is untrue to say that prior to the introduction of the NOTA option, voters did not have an option of casting a vote ultra vires the list of candidates at the polling booth. Prior to 1998, that is before the advent of EVMs in India, voters could, albeit not praiseworthy, discreetly cast a negative vote by selecting either all or none of the options provided in the ballot paper  However this practice stopped on introduction and mechanism of Electronic Voting Machines, and as per constrictions due to Rule 49B of the Conduct of Elections Rules, 1961. Additionally, under S.49 (O) of the Rules,1961, a procedure as per which a voter could register a dismissive vote, by signing his electoral number in Form 17A. This would be further authenticated by the presiding officer. The rationale behind this system was to object to the squandering of votes. The pitfall to this system was that by giving away the electoral number of the person casting the negative vote, the concept of the secret ballot would rupture. Free and fair elections being the norm, this procedure was brought to question in the NOTA judgment. 
The Supreme Court, while hearing the case on merits ruled that secrecy is an inherent, inalienable component of free and fair elections. This is also embedded under Section 128 of the Representation of the People Act, 1951 and Rules 39 and 49-M of the Conduct of Elections Rules, 1961 Rules.  Apart from the above, it is also backed by international covenants. Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights provides for a person's right to a secret vote, equally and without unreasonable restrictions. Due to this crucial violation of the law, the procedure under S.49 (O) was held to be unconstitutional. 
The difference between the option under 49 (O) and NOTA, apart from the former disrupting secrecy, is that under the first system, a voter could provide a reason for his rejection of all the candidates in Form 17 A, while the second option has no scope for it. In this line, it could be said that the former would be more productive than the latter, but in keeping in regard, the fact that it questioned the very basic structure of the electoral system in India, the option of NOTA is given predominance.
Further, as the Honourable Supreme Court opined, “The option provides a man who does not come to the polling booth due to being unsatisfied with his options, a golden opportunity to showcase his resentment.” This in turn intercepts proxy or bogus voting. When a person does not turn up at the booth, the non-casted vote may be banked in by political parties by engaging in deceitful deeds. NOTA would be an encouragement to an unwilling voter.  If the option of NOTA is given the value that it is meant to hold, it can be a weapon of the citizens to portray their sole will while electing their representatives.
A key impact that NOTA has on the results of an election is that the option takes unto itself votes from other political parties and a clear rift in victory margins between them can be seen. Even then, NOTA has not had an evident impact on the electoral results, as more often than not, NOTA is disregarded during the counting process. Former Chief Election Commissioner, SY Quraishi stated in 2014, Even if 99 percent votes are secured by the option of NOTA, the party with one percent would emerge as a winner to form the government.  This means that until all states and commissions actually bring about the validity to NOTA, they would be inconsequential. In such a case NOTA votes would only be added to the votes that are not cast at all. So the primary reason why NOTA was directed to be brought is vanquished. It becomes the very evil it sought to destroy. 
Contrary to what the Supreme Court envisioned, the ECI has stated that although NOTA votes are counted, they would be deemed as invalid.  This is a great setback to electoral reform. People then would only wonder why they would go to the polling booth, and wait in the queue at all, if at the end of the day, the vote does not hold value.
The option of NOTA would be efficient only with the cooperation of both the Election Commission and the voters. For example, a significant number of votes are cast to the symbol of NOTA, but the Election Commission still announces the party that secures the majority in the remainder of the votes, as the winner, the system would be inane. Alternatively, the case wherein the Election Commission is in favor of the functioning of the option, but the voters decide that the procedure would be a waste of time, and decide to not give it prominence in a time where they are genuinely unsatisfied with the candidates, even then the option would be squandered. Electoral reforms are always welcome, especially at an age where the primary focus of the country is developing.
If a constituency secures maximum votes in the form of NOTA, the government must hold re-election with a mandated change in the list of candidates. Instead of considering NOTA votes as void, they must be used to judge voter satisfaction. This would not only keep the sanctity of democracy intact but would also lead to a decrease in NOTA votes eventually. Additionally, party workers who are meritorious and have a clean chit would get a chance to contest in elections. Bringing reforms to ensure the strengthening of NOTA would mean that the people will not settle for any person not suitable to their needs. Only those who will sincerely work for the upliftment of the constituency would be voted for and anyone would not receive a vote out of compulsion. Also, if NOTA secures the highest number of votes in an election, then the candidates at the election must be forbidden from contesting from the same constituency for the next term.
Citizens of a country would truly be able to participate in the governance of our country, when they are able to elect among quality candidates, so that the best man may win, and not the better off the lot. 
The option of NOTA, when used effectively will not only avoid the compulsion to a voter to elect a candidate by settling, it will also impose compulsion on political parties to nominate a worthy candidate. Negative voting might just be the tool for the construction of a wholesome democracy.
Any electoral reform is pointless if the people who are supposed to make use of it, are unaware of it. The tragic state of affairs in the country is that while a major part of the population is unaware of the ways and positions of politics in the country, another portion accepts being blindfolded by party misinformation and nods to every move made.  Given the illiteracy, party propaganda, ignorance, and misinformation prevalent in the country, the Election Commission cannot be expected to prove efficient. Therefore, the Election Commission must use all public platforms to spread information about the advantages and prominence of the option, once a procedure devoid of apertures and inadequacies is framed.
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4. Jagdeep s. Chokkar, Implementing NOTA In The Right Spirit, The Hindu, (Dec 25, 2018, 00:15 AM) https://www.thehindu.com/opinion/op-ed/implementing-nota-in-the-right-spirit/article25822043.ece.
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7. Ramesh Sargam, Does NOTA have any relevance in today’s political system?, Times Of India (Mar 13, 2019, 20:55 PM) https://timesofindia.indiatimes.com/readersblog/rightpath/does-nota-have-any-relevance-in-todays-political-system-2489/.
8.Richa Mishra, NOTA as a right!, The Hindu Business Line (Apr 29, 2019) https://www.thehindubusinessline.com/opinion/columns/nota-as-a-right/article26983554.ece.
9. What if NOTA gets more votes? The Economic Times, ( Feb 03, 2020, 07.11 PM) https://economictimes.indiatimes.com/news/elections/lok-sabha/india/what-if-nota-gets-more-votes/articleshow/68741402.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
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