By: Suchak Patel
The direction in the judgment dated 27th September, 2013 of the Hon’ble Supreme Court is to provide a NOTA option on the EVM and ballot papers so that the electors who do not want to vote for any of the candidates can exercise their option in secrecy.
Voting related Act and articles :
1.) Article 19(1)(a) – Freedom of expression
2.) Representation of peoples act – 79(d) – Right not to vote
3.) Representation of peoples act – – 128 – Maintenance of secrecy of voting
4.) Election rule 49 M deal with the secrecy of voting
5.) Election rule 49 O – not to vote
What is the problem in current procedure ?
In case of ballot paper : A voter can use his right of “ Note to vote” by dropping ballot paper without mark of any one party or candidate in drop box with secrecy. But in case of EVM , A voter need to fill up a from 17A and put signature on it and submitted to presiding officer and in doing so , the secrecy of voting no longer stay at place.
What will be the new procedure ?
There is an option of “none of above” in EVMs.
How NOTA is differ than Right to reject ?
In NOTA if the more than 50% of voter vote for NOTA than also the candidate who get highest votes declare as winner. There is no provision of re election in such case .
How is it a step in the direction of electoral reforms ?
NOTA is a negative voting up to the current situation , It may or may not the pressurized the political party to give tickets to clean candidates but when a candidate declared winner with just 20% votes ( when 50+% to NOTA ) , it became un democratic when a person declared as the representative of people having less 20-30% of votes. And this will lead the pressurized the political parties to give tickets to clean and good candidate
– There are total 13 democratic countries in world who practiced NOTA / Negative voting
– There is no Secrecy in the voting of Rajyasabha election.
Constituency based representation” VS proportional representation”
In a representative democracy is that in the case of the list system of proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelled for breach of discipline. Therefore, to give effect to the concept of proportional representation, Parliament can suggest “open ballot”. In such a case, it cannot be said that “free and fair elections” would stand defeated by “open ballot”. As stated above, in a constituency-based election it is the people who vote whereas in proportional representation it is the elector who votes.
This distinction is indicated also in the Australian judgment in R. v. Jones. In constituency based representation, “secrecy” is the basis whereas in the case of proportional representation in a representative democracy the basis can be “open ballot” and it would not violate the concept of “free and fair elections”, which concept is one of the pillars of democracy.”