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Moving into an age of consent

india Updated: Sep 11, 2011 20:48 IST
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Anna Hazare, when he gave up his fast, announced that his next agenda is to demand electoral reforms, especially the right to reject candidates in elections and the right to recall a legislator before his/her term ends.

The central government seeks to project itself as responsive to public opinion. This is its opportunity to do so. I say this because the public demand for the right to reject vote or, more clearly, have the option of 'None of the above' (Nota) is easy to effectuate. The Representation of the People Act, 1951, and its rules provide a detailed mechanism to contest elections and vote. The Conduct of Election Rules, 1961, provides guidelines for casting votes and emphasises on the need to maintain voters' secrecy, an absolute necessity for a healthy democracy.

Prior to the introduction of electronic voting machines (EVMs), voting was done through ballot papers. Rule 49 (O) of the Conduct of Election Rules states that if an elector decides against registering his vote, the presiding officer should make a remark on Form 17 and get the voter's signature. But this procedure is faulty and outdated, as it doesn't take into account the mode of change of voting from ballot papers to EVMs. It's also illegal, as the identity of the voter who decides to not cast his vote, gets disclosed, thereby violating his fundamental right of voting in secrecy.

The Election Commission (EC), realising this anomaly, has been writing to the Centre since 2001, asking for necessary amendments to the rules by providing a slot of Nota in EVMs. The government's inaction prompted People's Union for Civil Liberties (PUCL) to file a writ petition in 2004 in the Supreme Court, asking for direction to request the central government to suitably amend Rule 49 (O). The writ petition was heard by a two-judge bench, which referred it to a larger bench in 2009. But due to the congestion of cases in the apex court, the matter hasn't yet come up for hearing. There is no legal prohibition to make the necessary change in rule 49 (O) to provide an option for Nota.

The introduction of Nota in EVMs will bring about a radical change in the political arena. At present, voters are treated as dumb, driven cattle who must vote for a candidate, even if they find all candidates undesirable. Unlike in the US primaries or Britain, voters in India don't have a say in selecting candidates. Here, candidates are selected by a small cabal of party leaders or, in some parties, by a few so-called 'super leaders'. The provision of Nota will usher in a sea change in the power equation, favouring 'small' voters over the 'monster' of a big political party. It will enable voters to exercise their right in secrecy and make political parties aware of their anger towards unsuitable candidates and their political mentors.

It's not as if voters don't want to record their disapprobation of contesting candidates. They are afraid to do so thanks to the unholy nexus between many contesting candidates and the mafia, and the fact that their identity will be revealed. With Nota in EVMs, voters will be able to speak their minds fearlessly and, thus, check the increasing politicisation of criminals.

The principles justifying Nota are self-evident, namely:

Legitimate consent requires the ability to withhold consent too
It'll save voters from being forced to vote for the least unacceptable candidate
Voters will decide the fate of the candidates selected by political parties instead of parties deciding voters' choices
People who register their disapproval of all candidates by not voting will be able to cast meaningful votes.

In an election, if Nota 'gets' more votes than any candidate, no one will be declared elected. Instead, a follow-up by-election with new candidates - earlier ones being ineligible - will be held till a candidate gets more votes than all other candidates, including Nota. Of course, a legislation will have to be passed for this provision. If implemented, it will send a clear message to political parties that they don't hold the exclusive right to decide the choice of candidates, and that a wrong choice will result in re-elections.

Nota has many thoughtful advocates in many countries, the most well-known being the Lebanese American progressive political activist Ralph Nader. America, Australia, Norway and other countries also have strong constituencies favouring Nota.

The Centre can compensate for the self-damaging conduct it displayed in its handling of Anna Hazare's agitation by immediately amending Rule 49 (O). The provision of Nota in EVMs for all future elections will also be affirm that in a democracy the supreme power rests with voters.

Rajindar Sachar is former chief justice, Delhi High Court

The views expressed by the author are personal

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