Friday, September 27, 2013

And now, NOTA!

Supreme Court's reasoning in the NOTA case, delivered today, appears to be strong on Article 19(1)(a) grounds.  But on other aspects, I find the following justifications, very weak:

* The provision of secrecy must necessarily extend to NOTA
*  Other countries have it.
*  Our law-makers have the right to abstain
* NOTA will increase voter participation in democracy, as voters can send a message to parties.
* Not having NOTA will lead to impersonation of voters, as dissatisfied voters may abstain.
* EC must create awareness about NOTA ( Does the Court expect the EC to tell the voters not to vote at all  any of the candidates, if they are dissatisfied? Considering that there will always be some grounds for dissatisfaction, will it not result in the negation of EC's primary responsibility to conduct and oversee elections - a basic feature of the Constitution?)

These are my initial impressions.  I am sure our readers will analyse the judgment further and share their perspectives in the coming days. 

8 comments:

Tarunabh Khaitan said...

This is a bad idea, which may weaken, not strengthen democracy. Replacing First-Past-the-Post with the Alternative Vote system would have been much better in ensuring that the winning candidate has genuine majority support, than NOTA. Particularly, for a court to make this momentous decision is outrageous. It is a classic polycentric case which required widespread consultation only Parliament is capable of.

http://lawandotherthings.blogspot.co.uk/2010/02/westminster-may-give-up-on-first-past.html

Nick Robinson said...

Haven't read the opinion yet - looking forward to in the next couple days. I know I sound like a broken record, but I did note that it's only three judges not five as would seem to be required by the Constitution. Might lead to uncertainty later: http://lawandotherthings.blogspot.com/2013/08/uncertainty-over-constitutionality-of.html

Nick Robinson said...

PBM on None of the Above (from 2012):
http://www.indianexpress.com/news/none-of-the-above/906690/0

He calls it "muddled thinking". Again, haven't read the judgment yet, but they haven't seemed to say what would happen if "None of the Above" won more votes than any of the candidates. I don't see why they wouldn't explain this or at least discuss who should make the decision what would happen of "none of the above" won (which in a country as large as India is bound to happen somewhere sometime soon).

The Court says, "Thus in a vibrant
democracy, the voter must be given an opportunity to
choose none of the above (NOTA) button, which will indeed
compel the political parties to nominate a sound candidate." I don't see how this logic holds up unless NOTA has the ability to win in which case, well, we don't know? (A new election? An unfilled seat? The President appoints someone in the interim?) If NOTA can't win then how will it compel parties to change their candidates?

None of this is to say there should not be a NOTA or write-in option. It could very well be a good idea, but the consequences deserve to be thought through, debated, and articulated.

Aparna Chandra said...

Nick,

Just scanned the judgment, and it appears that the Court is not recognizing a completely new option. Rather, it is placing within the protection of ballot secrecy the existing option of 'taking the ballot but not casting a vote in favour of any candidate'. The NOTA button is the mechanism to bring the existing option within ballot secrecy. So this NOTA vote will have no impact on how votes are currently counted- i.e., first past the post for all non-NOTA options.

In the bit that you quote, I think what the Court is thinking of is the disciplining power of public naming and shaming of candidates in case NOTA does win. Whether political parties are capable of/likely to be shamed is another matter altogether.

I must say, by and large, and subject to a deeper study, I found the argument on the Rules being ultra vires the RP Act and Arts. 14 and 19 (1) (a) to be quite compelling.

Nick Robinson said...

Aparna, Thanks for clarifying this (and should caution me from making comments before reading the first half of a judgment).

We'll see what shaming impact it has and if voters take the option up. You may think all the options are bad, but often there are less worse evils and you'd be basically giving up your opportunity to express that by going with NOTA. I'm sure some will, but I wonder how many will take the risk of having an even worse candidate win against just a bad candidate by going with NOTA. I guess we'll find out. As for ramifications they seem more expressive than anything else.

Aparna Chandra said...

On the other arguments in the judgment, here is what I could gather:

1. The FR justifications are as follows:

a. Right to Vote is a Statutory Right. However, once given, the exercise of that right is governed by Art. 19 (1) (a). A person has the freedom to choose how to vote, and whether to vote or not. This freedom is protected under Art. 19 (1) (a). In a sense the right to vote is like a Hohfeldian liberty (my words, not the Court's). The freedom to vote is unreasonably restricted if the effective exercise of a voting option, including the right to ballot secrecy, is denied.

b. Free and Fair Elections is a Basic Structure norm. Voting without fear of reprisals is integral to free and fair elections. Art. 14 is violated if the state classifies, in terms of their ability to participate in elections without fear, between those who choose to cast their votes in favour of particular candidates and those who don't

2. Section 128 RP Act provides for secrecy in voting. Rules 41 (2) &(3) and 49-O are ultra vires Section 128 because they do not provide secrecy to persons choosing to exercise the option of 'taking the ballot but not voting'. I think, legally this is the weakest argument. The RP Act nowhere protects the secrecy of the right to not vote. Section 79d which defines electoral rights includes within its ambit the right to vote or not vote. Section 128 is not talking about secrecy in the exercise of electoral rights generally, but about secrecy in the right to vote. The rules are the only place where the option of taking the ballot but not voting is included. The govt. could very easily get around the "ultra vires the Act" objection by simply amending the rules to take away the right to "take the ballot but not vote". Don't know if the govt. will do that, but if it does, it'll be interesting to see how far the Court will go with the Art. 19 (1) (a) argument. Will the scope extend to a right to a negative vote regardless of statute/rule providing for such a right? In such cases the 19(1)(a) argument could go both ways, methinks.

Aparna Chandra said...

And I agree, I am not sure how many people will exercise that option. It's too much of a risk if it changes nothing about the result. I can see this happening though in locally contingent and very isolated instances, where all options appear equally bad- maybe those places that historically swing between one party and another every election?

Mangesh Patwardhan said...

Think it's just a case of fixing a software bug. A voter already had `NOTA with secracy' option during the manual voting era. Could simply dropt the unmarked ballot paper into the box. Unfortunately, the option was not carried over to the digitized vote version. With the SC Order, the option has been restored.