SC keeps door open on negative voting

It is election summer, and the leaders of the major political parties are busy nominating candidates whose most important qualification will be the ability to take advantage of the local caste or community arithmetic in their respective constituencies. In these pre-election games, neither those who do the everyday work of parties nor those who vote them in and out of power have anything to do with selecting candidates. Naturally, then, one is led to ask - on Election Day, should the voter have the choice to reject all candidates - by selecting a ‘None of the above’ option on the electronic voting machines - if he finds them all unsuitable?

The proposal for allowing what is commonly termed the ‘negative vote’ was debated for many years before it reached the doors of the Supreme Court as the substance of a Public Interest Litigation (PIL) in 2004. A two-judge bench of the Supreme Court, disposing this petition on 23 February 2009, found sufficient merit in it to recommend its consideration by a larger Constitution Bench; the Government of India, opposing the petition, had argued for its outright dismissal.

This proposal for electoral reform is just one example of the many that have been languishing for years for want of action on the part of the Government. The history of these attempts at electoral reforms provides valuable insights into the forces ranged for and against them. But first, it will be useful to consider the problems of the elector today, and the arguments advanced for and against the negative vote.

Lack of interest or disapproval?

What are the choices before an elector today if s/he is presented with an undesirable set of candidates? There is an obscure provision in the current election rules that allows a voter to merely register his presence at the booth with the polling officials without voting for any candidate. But this option is not secret, and as a result one can expect it to be rarely used, and that indeed that is the case.

The major political parties, notwithstanding their differences, share a strong common vested interest in denying greater rights and freedoms to the electors, and have closely co-operated in Parliament to defend the status quo in electoral law.

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• Towards positive change

There are other ways of expressing dissatisfaction with the slate of candidates. Voting for the least unacceptable candidate is another option, but this is only possible when at least one candidate meets the minimum threshold of acceptance for a voter. The more common practice, among those who aren’t particularly enamoured of any of their potential representatives, is to stay away from the polling booth altogether, and over 280 million electors did just that during the 2004 Lok Sabha elections. But abstaining electors inevitably invite the charge of being uninterested in the affairs of the nation, and of failing to be good citizens. The recent Tata Tea/Janaagraha-led jaago re campaign epitomises this view in the lines “On election day, if you are not voting, you are in slumber…”.

Against this backdrop, the introduction of a ‘None of the above’ option in the ballot is expected to give the elector a legitimate way of expressing disapproval of candidates in an election without appearing to boycott the proceedings as a whole. As a positive side effect to this, incidences of bogus voting through impersonation of absent voters should come down. There is also perhaps an optimistic view that negative voting will lead eventually to better candidates. The Law Commission in its 170th report on Reform of Electoral Laws, while recommending the negative vote, explained its benefit: “the negative vote is intended to put moral pressure on political parties not to put forward candidates with undesirable record i.e., criminals, corrupt elements and persons with unsavoury background”.

However, it has been pointed out that such pressure would be more likely to work, if, the negative vote also carries weight in determining the outcome of an election. For example, the election rules could provide for a re-election in case ‘None of the above’ option receives more votes than any candidate, and also bar the original candidates from contesting again.

Critics of the negative vote option do not find anything wrong in principle with the measure. Rather, their criticism is that it may be impractical to implement, that it is unlikely to change voting patterns, and hence unnecessary. Examples are cited of countries with the negative vote where it has not made a great difference. The State of Nevada in the United States has a ‘None of these candidates’ option in its ballots and votes gathered under this option are reported, though the ‘first-past-the-post’ candidate is always declared elected. In the recent presidential elections in the US, only 0.65 per cent of the voters of Nevada voted against all the candidates.

Still, the negative vote option - even if it is unlikely to change voting patterns - is unlikely to cause harm, and may in fact help to improve the quality of candidates. The opposition to it, therefore, should be seen in light of the stumbling blocks that have been placed before other equally innocuous measures for electoral reforms by the major political parties. It is also noteworthy that the recent history of attempts at electoral reforms shows the major political parties, notwithstanding their differences, sharing a strong common vested interest in denying greater rights and freedoms to the electors and closely co-operating in Parliament to defend the status quo in electoral law. As a result, the burden of championing the interests of the elector has been left to civil society.

The elector’s right to know

In 1999, the Association of Democratic Reforms filed a PIL in the Delhi High Court requesting the court to direct the Election Commission (EC) to collect and make available to the public, details of pending criminal cases, if any, from candidates in their nomination forms by amending the Conduct of Election Rules and obtained a favorable ruling in 2000. The Government of India immediately appealed against this ruling to the Supreme Court. The Supreme Court, upholding the High Courts judgment in 2002 explained its reasoning:

“Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man-citizens’) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers.”

The Court also determined that while the Election Commission was bound to act in conformity with laws made by Parliament or State Legislatures relating to elections, it was empowered by Article 324 of the constitution to take the necessary steps for conducting free and fair elections where the law was silent. The Court directed the EC to use these powers to collect information from candidates in an affidavit about criminal convictions, pending cases, assets & liabilities and educational qualifications. The EC complied by issuing an order in June, 2002 to implement this decision.

The political establishment was extremely uncomfortable at this turn of events. An all-party meeting in July 2002, presided over by the Law Minister with the then Deputy Prime Minister L K Advani in attendance, decided to introduce a bill in Parliament to amend the Representation of the People Act, 1951 to define the scope of disclosures to be made by candidates. The bill, passed as an ordinance by Government and later approved by Parliament in December 2002 limited the disclosures that could be sought from candidates by the EC. The Peoples Union for Civil Liberties (PUCL) challenged the constitutionality of sections of the amended Law. In March 2003, the Supreme Court declared some of the modifications to the Representation of People Act, 1951 carried out by Parliament to be unconstitutional and restored the disclosures from candidates sought by the EC.

Through these court battles, a small concession had been wrested in favor of the elector’s right to know about candidates who seek to represent him (see India Together’s earlier coverage of this struggle at this link).

The elector’s right to reject

Way back in 2001, the Election Commission approached the then National Democratic Alliance government with the proposal of introducing negative voting. There was no response from the government. In July 2004, after the UPA was voted to power, the EC again approached the government with a set of “urgent proposals for electoral reforms” including the negative voting proposal. On the question of negative voting, the EC had this to say: “The Commission has received proposals from a very large number of individuals and organizations that there should be a provision enabling a voter to reject all the candidates in the constituency if he does not find them suitable … The Commission recommends that the law should be amended to specifically provide for negative / neutral voting.”

Yet again, there was no response from the Government. With the experience of the struggle to establish the elector’s right to know, and seeking to push through this reform in the face of an intransigent government, the Peoples Union for Civil Liberties approached the Supreme Court in 2004 seeking directions to the EC to provide for negative voting in full secrecy. Incidentally, around this time, the BJP spokesman and former Law Minister, when contacted about the PIL, remarked that “it is a debatable issue and there should be a thorough debate among the cross-section of people…” (The Tribune, Chandigarh, 25 January, 2005). But the debate had been already on for a mere 7 years or so!

With the recent ruling of the Supreme Court this year on this PIL, it will be left to a Constitution bench to decide whether the right to vote in secrecy and the right to reject all candidates flow from fundamental rights guaranteed in the constitution and if the scope of the powers of the Election Commission can extend to implementing mechanisms for negative voting. If the right of the voter to positively reject bad candidates is recognised, it will be another step, albeit small, along the difficult road of electoral reforms.