The article is co-authored by Rohini Patil, BA.LLB. second year (2023-2028), and Mahipal Parmar, BSW.LLB. second year (2023-2028) of Gujarat National Law University, Gandhinagar.
Introduction
‘Free and fair elections’ is an essential element of the basic structure of the Indian Constitution. In India, the right to vote is statutory and includes the right to cast a negative vote while maintaining voter secrecy. The introduction of “None of the Above” (NOTA) as an option was to give this negative right to vote to the citizens. The mechanism of negative voting leads to wider participation, as people can express their disapproval of candidates rather than abstaining from voting altogether.
In the recently conducted Lok Sabha Election of 2024, Indoreproduced extraordinary results recording the second highest votes for “None of the Above” totalling at 2,18,674. This has set a new record, as earlier it was held by Gopalganj, Bihar (2019 elections) when 51,660 voters chose this option. This article studies the history and significance of NOTA in Indian Elections.
How NOTA was Introduced?
The Election Commission of India introduced ‘None of the Above’ (NOTA) option in 2013 pursuant to the order of the Hon’ble Supreme Court dated 27th September 2013. A three-judge bench comprising the then Chief Justice of India P. Sathasivam, Justice Ranjana P. Desai, and Justice Ranjan Gogoi ruled on a petition filed by the People’s Union for Civil Liberties (PUCL). The petition challenged the constitutional validity of Rules 41(2) and (3) and 49-O of the Conduct of Election Rules, 1961, on the grounds that these rules violated the fundamental right of voters under Article 19(1)(a) of the Constitution.
These sections of the rules violated voting secrecy as they allowed the Presiding Officer to maintain a record of voters who chose not to vote, along with their signatures or thumb impressions. This created an unreasonable and arbitrary distinction between voters who cast their vote and those who did not, violating Article 14 of the Constitution, which guarantees equality before the law to every citizen. The Supreme Court held that “right not to vote” is a part of expression of a voter in a parliamentary democracy and has to be recognised and given same effect as “right to vote”. In order to exercise this “right not to vote” while maintaining secrecy, the court ordered the Election Commission of India to introduce “None of the Above” as an option in all Electronic Voting Machines (EVM) and ballot papers.
The symbol of NOTA was designed by the National Institute of Design (NID) Ahmedabad. The NOTA button in EVMs empower the voters to express disapproval of candidateswhich in turn will systematically compel the political parties to accept the will of the people and put forward candidates of integrity. One of the key arguments for the introduction of NOTA is that it would provide citizens with a way of protesting within the electoral process. The NOTA option was utilised for the first time in 2013 Legislative Assembly Elections held in the states of Mizoram, Rajasthan, Chhattisgarh, Madhya Pradesh and the Union Territory of Delhi.
Who Might Choose to Vote for NOTA?
It is often argued that certain groups of people are more prone to use NOTA than others. Socio–economic factors play an important role in this along with political viewpoints. A studyused data from eight European countries to investigate the said factors and their relation with making choice of choosing NOTA as an option. The study found that higher education and income levels were negatively associated with choosing the “None of the Above” option, indicating that individuals with lower education and income were more likely to opt for NOTA. Additionally, political knowledge and interest were negatively linked to selecting NOTA, suggesting that those less engaged in politics were more inclined to choose this option. The option is also widely used by voters to express their disapproval and dissatisfaction with the ruling political regime.
Similarly in India, voters have used NOTA as a way to amplify voter dissatisfaction. According to an analysis by the Association of Democratic Reforms (ADR), in the five years period (2018-2022), Nota has secured 1,29,77,627 votes in state assembly elections and Lok Sabha election. The same analysis done for the period of 2013-2017 found that NOTA has secured 1,33,09,577 (1.33 crores) votes in State Assemblies and Lok Sabha Election combined. The trend of choosing NOTA has been consistently high as seen from the above numbers.
What happens if NOTA gets the maximum number of votes?
NOTA has no legal consequence and if the highest number of votes are polled for NOTA, then the candidate who got the second highest number of votes wins the seat. This has never happened in Lok Sabha election but nevertheless it remains a possibility to arise. In the states of Maharashtra and Haryanaas well as the UTs of Delhi, Puducherry and Chandigarh, the respective State Election Commissions have passed orders to declare NOTA as a “Fictional Electoral Candidate” in local elections (including local body elections). If the votes for NOTA exceed the votes received by all other individual candidates, fresh elections will be held in these states and union territories.
For example, the order of the State Election Commission of Maharashtra dated 06 November 2018 stated three major objectives of the Supreme Court in introducing NOTA as an option, namely: increasing voter participation, compellingpolitical parties to file good candidates and reflecting negative votes in the election result. According to Clauses 6.2 and 6.3 of the Order, the State Election Commission of Maharashtra found that declaring a candidate as elected even though he/she secured fewer votes than NOTA violated these principles and allowed an unworthy candidate to become a public representative despite being rejected by the majority of voters.
The similar rule does not apply to Lok Sabha elections or other state legislative elections and if NOTA secures the highest number of votes, the candidate who receives the second highest votes is declared the public representative of the respective constituency.
How is NOTA practiced in different nations around the world?
Many countries in the world have recognised negative voting in their electoral procedure. Countries like France and Belgium have embraced NOTA in their electronic method of voting. Brazil, Greece, Chile, Ukraine and Bangladesh have adopted NOTA through ballot paper and in Finland and Sweden, voters have an option of polling blank votes. In some of these countries, the Indian rule is applied and NOTA votes do not affect the election results while in some, like Columbia, if NOTA receives the majority votes, then fresh elections are held.
NOTA In News
Recently, issues regarding the application of NOTA and its awareness have been raised. The Bombay High Court dismissed a Public Interest Litigation (PIL) filed by a PhD student seeking directions for the Election Commission of India to increase awareness among voters about NOTA option on EVMs in an order dated 22nd March 2024. The bench, comprising Justice Ravindra V. Ghuge and Justice R.M. Joshi held that sufficient steps had been taken by the ECI and State Election Commission to raise awareness about NOTA.
Another petition has been filed in the Supreme Court seeking that if maximum votes in a constituency are polled for “None of the Above” then the election must be declared “null and void” by the Election Commission of India and a fresh election should be held for the constituency. The petitioner also argued that the same candidates who lost to NOTA should be barred from contesting the fresh elections. The petition seeks to declare NOTA as a “fictional candidate” in the same manner as it has been done in states like Maharashtra and Haryana. On 26th April 2024, the Chief Justice of India, D.Y. Chandrachud have sought reply from the Election Commission of India.
Conclusion
In Indian elections, the “None of the Above” (NOTA) option gives voters the ability to reject every candidate without abstaining from voting. Since its inception in 2013, NOTA has drawn attention to voter discontent and is believed to put pressure on political parties to re–evaluate their choice of candidates. The recent record-breaking NOTA votes in Indore during the 2024 Lok Sabha elections, demonstrate growing public discontent with the candidates running in election. To maximize the effectiveness of NOTA, several major policy changes are necessary. First, mandatory re-elections should be conducted if NOTA receives the highest number of votes. Second, candidates who lost to NOTA should be barred from contesting the re-elections. Enhancing the impact of NOTA can lead to a more participatory and responsive political system, strengthening India’s democratic fabric.