Firing blanks at candidates
A ‘None of the Above’ (NOTA) majority vote by voters is the severest democratic indictment of ‘All the Above’ (ATA). If NOTA polls higher than candidates A, B and C, it accurately measures the ‘disgust quotient’ of the electorate. Why should the expression of such a frank view not be permitted in the world’s largest democracy?
NOTA reflects a maturing of Indian democracy. The Supreme Court has translated public desire for greater transparency by directing full disclosure of educational qualifications, financial assets and criminal antecedents. Last week, the Delhi High Court added a no-dues certificate to this list. The fundamental rationale is increase in voter choice and voter empowerment. A NOTA option is a logical second step and a vital link in the continuity of electoral reforms, reflected in measures like increased expenditure limits, corporate funding of elections and abolition of the Rajya Sabha secret ballot.
Second, NOTA is akin to a no-confidence vote. It is an effective means of communicating voter dissatisfaction. In its first phase, NOTA must remain non-binding, i.e. not requiring re-election (as in Nevada, US). But second generation electoral reforms should use ‘binding’ NOTA to have re-elections and to ensure candidate accountability. More than 250 million citizens of Europe, Asia and the US (Massachusetts has had a binding NOTA since 2003) have the right to choose NOTA, including in new democracies like Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Tajikistan, Ukraine and Russia. Some 650,000 petition signatures were collected for NOTA in California, though the proposal was rejected. However, Indian law should provide for re-elections only if certain thresholds are exceeded, e.g. if NOTA votes exceed 50 per cent.
Third, if free speech and expression are part of a constitutional fundamental right, ‘free expression of the will of the electors’ should be recognised as an important component of this right. International human rights documents explicitly underline this (Article 25(b) of the International Covenant on Civil & Political Rights, 1966). Fourth, a NOTA option is likely to substantially increase voter turnouts. If low voter turnouts is a negation of democracy, NOTA strengthens democracy immeasurably.
Fifth, NOTA cannot be equated with ‘spoiling a vote’. Voters’ positive and conscious exercise of NOTA is quite different from the indifferent absentee voter and the ignorant, erring voter who ‘spoils a vote’. Indeed, many voters deliberately ‘spoil’ their vote to convey anger because they do not have a NOTA option.
Sixth, the enhanced cost of repeated elections is a small price to pay for a qualitatively better democracy. Binding NOTA would lead to re-polls only in specific constituencies. Coalition era politics has made us far more comfortable with frequent elections. The economic activity generated around elections would give a periodic boost to the GDP instead of retarding it.
A non-binding NOTA followed in the second phase by a binding NOTA is all about accountability, voter empowerment, registering dissent, discontent and dissatisfaction and, therefore, about the heart and soul of a qualitatively superior democracy.
The ‘tribunalisation’ of justice over the last four decades has seen tribunals for company law, excise and customs, service matters (so-called CATs, SATs and RATs), income tax, banking dues recovery, the nascent Competition Commission and so on. Most of these subjects have been hived off from erstwhile high court jurisdiction. Whether this general transfer of adjudicatory functions from an independent judiciary to tribunals manned by retired bureaucrats and judges appointed by the executive is good and healthy for the democratic system is a larger debate and not the subject today. What is clear, however, is that one set of such tribunals — the BIFR and its appellate avatar, the AAIFR — set up to deal with industrial sickness and to attempt to revive ‘sick’ units, has failed.
Out of approximately 5,000 ‘references’ of sick companies registered under the act since 1987, an infinitesimal 8 to 10 per cent units have been revived. Approximately 30 per cent companies have wound up and roughly 1,600 cases are pending in BIFR, many for years.
The government decided to merge the sick companies’ jurisdiction with the proposed National Company Law Tribunal and its appellate body. It was also decided to amend the
infamous Section 22 of the SICA Act, 1985, which automatically unfurled a protective umbrella in favour of companies with pending references in BIFR or AAIFR and prevented any creditor from recovering any debt or taking any coercive steps whatsoever either against the sick company or even against the guarantor of the debt, without prior permission. Section 22 swiftly became a haven for crooks and defaulters.
Ironically, the proposal to abolish the tribunal itself has been pending for three years. Meanwhile, a Kafkaesque farce continues to be enacted. Despite the BIFR pendency, against its maximum strength of 14 members the BIFR’s actual strength has never exceeded eight since its constitution and for a long time now has been only four. It thus functions with only two benches as against a possible seven.
In the last 15 months, the AAIFR has functioned only for five (Jan-March and May-June 2003). No effective hearings have been held for the last 12 months. Despite that, a new chairman was appointed in end 2003, but he has no other member and, therefore, comes to office and leaves without conducting any hearings in the absence of a specific power to do so without a member. Those who want urgent relief against BIFR orders leapfrog and go directly to the Delhi High Court. But for many others, the lame duck AAIFR is a blessing in disguise since they merely need to register appeals against orders of BIFR rejecting their registration, which lie in the registry of the AAIFR, with a certainty that they will not be taken up for hearing and disposal.
So long as the appeals pend, the infamous protective umbrella of Section 22 continues to prevent creditors acting against crooked promoters. Everyone is happy.
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