An interesting case has been filed in the Supreme Court (SC) of India. The petitioner has filed a Public Interest Litigation (PIL) contending that if in an election NOTA gets more votes than the highest votes polled by any candidate, then such an election should be canceled, and the candidate, who has polled the highest votes, should also not be declared as the winner.

For those who may not know, NOTA means ‘None of the Above.” This is a new button provided on all Electronic Voting Machines (EVMs) for the last few years under the September 2013  judgment of the Supreme Court following a petition by Peoples’ Union of Civil Liberties (PUCL), an Indian human rights body.

NOTA - is it just an ornament?

The issues raised in the present petition are also extremely important. NOTA votes have become more ornamental than meaningful. Irrespective of the percentage of such votes, the outcome of elections is not impacted. Probably this happens because of a circular issued by the Election Commission about a month after the 2013 SC judgment stating that even if NOTA gets more votes than the candidate who has polled the highest votes will still be declared winner, thus effectively negating the verdict of the voters.

The present PIL before SC aims to raise this issue. If the idea is not to keep NOTA as a mere ornamental provision, this is the least which should be done to maintain the sanctity of election results. It is rather curious that even after more voters of a constituency have rejected all candidates of their constituency, still their free choice should be brazenly rejected and candidate getting highest votes (though less than NOTA) should be declared the winner. 

Obviously the existing provisions under Representation of the People Act (RPA) 1950 and1951 and other laws that govern conduct elections in India must be having some stipulation that the candidate getting the highest votes must be declared the winner. That is why the Election Commission issued its October 29, 2013 notification. So now change in the law by parliament or clarification/interpretation of the law by the SC is required.

Since all politicians and all political parties are happy with the present system of ‘first past the pole’ irrespective of the percentage of votes polled, it is doubtful whether such an amendment will be at all made in RPA. It is interesting to note that during the PUCL case which led to September 2013 NOTA judgment of SC, Election Commission had supported the NOTA demand, though the government was not in its favour. If NOTA is not to remain a useless/ornamental button on EVMs, the least that can be and must be done is to reject all candidates if NOTA gets the highest votes in a constituency.

Right to reject and elect new candidate

As per media reports, this actually happened in the Gujarat assembly elections in 2017. In these elections, NOTA got more votes than any candidate in more than a dozen constituencies but still, those candidates were declared winners. A similar situation was seen in some assembly constituencies in Karnataka, Madhya Pradesh and Rajasthan in the 2018 elections. Still the candidates who got the highest votes - though less than NOTA - were declared elected, thus it totally ignored the verdict of the people.

The reason that is given by those who want to retain the present system of declaring a winner even if he/she has secured fewer votes than NOTA is that a political party may influence its supporters to cast NOTA and this will result in many seats in Lok Sabha and assemblies remaining unrepresented. But, this is not right.

If a political party has indeed so much influence in a constituency that it can persuade more people to cast negative votes, it certainly can get the same votes in favour of its own candidate or another candidate supported by them and make that candidate win with an impressive vote margin. Secondly, even if a constituency remains unrepresented in the legislature for a few months or a couple of years, heavens are not going to fall.  After all, during Governor’s Rule entire state is without any elected legislature. If a few seats remain vacant, the majority party can still form the government. The country or a state need not be in ‘election mode’ all the time.

By-elections to various vacant seats in the country or an entire legislature can be bundled together and held together. In fact, a political consensus may be built that bye-elections will be held every two to two-and-a-half years irrespective of the fact whether elections are caused due to term of legislature ending, Governor’s rule, vacancies caused by NOTA, or death of a candidate or winner. Some changes in law or constitution will be required. But if there is political will, it should be possible.

NOTA in some countries 

NOTA with different names but similar intent exists in few other countries (states) like Indonesia, Greece, Ukraine, Spain, etc, and also in the state of Nevada in the US. Some countries like Russia and Pakistan first introduced and then withdrew this system from the electoral process.

Another problem, if indeed it is considered as a problem, also needs to be fixed. This is low voting. Unless one has a valid reason not to vote, everyone must be “forced” to vote even at the pain of some graded penalties. It is a civic duty of every citizen to come out and vote. Whether they vote for candidate ‘A’ or ‘B’ or ‘NOTA’ should be left to their choice.   

More than 20 years ago, a prominent journalist and later union minister Arun Shourie wrote a book analysing election data of previous general elections. From this statistical analysis, the learned author postulated that to win an election a party or a candidate needed to win votes of only about 10 to 12 percent of the electorate in a constituency and that there was a good chance that he will win the elections. In fact, that is how most political parties and candidates seem to be working. They consolidate their vote bank on the basis of caste/religion or some other group comes together having common interest to vote for a candidate. 

For example, if Punjab, Haryana and western Uttar Pradesh farmers join together and cast their votes for the candidate they favour and vote in full strength, victory is guaranteed even if support is only an abysmal 10 to 15 percent of the electorate. That is also the reason why no political party ever bothers about the so-called middle class because they know not very many in the middle class and the upper class may undertake the trouble of standing in a queue to cast vote. They prefer to stay at home or go out on a holiday.

An analysis of the last four general elections from 2004 to 2019 - two won by the Congress/United Progressive Alliance (UPA) and the last two by the Bharatiya Janata Party/National Democratic Alliance (NDA) – shows the pattern.

*In 2004 general elections UPA ousted Atal Bihari Vajpayee’s coalition government and came to power under the leadership of Congress President Sonia Gandhi with Manmohan Singh as Prime Minister, a total of about 38.99 crores voters out of an electorate of 67.15 crores,  i.e just about 58 percent had cast votes. Congress got 26.5 percent of votes polled and 15.4 percent of the total electorate and won 141 seats in Lok Sabha and led the ruling alliance.

BJP, on another hand, got 12.8 percent of the electorate and 22.15 percent of votes polled and won 130 seats.

*In the 2009 general elections, the electorate was 71.7 crore; votes polled 41.73 crores, i.e, 58.2 percent. Congress got 28.54 percent of votes polled and 16.61 percent of the electorate, and won 222 seats, thus leading the government at the centre.  The BJP got 18.8 percent of votes polled and 10.94 percent of the electorate, thus winning 112 seats.

*In the 2014 elections in which NDA led by BJP under the leadership of Narendra Modi, the electorate was 83.41 crores; votes polled 55.42 crores, i.e 66.44 percent. The BJP got about 31 percent of votes polled and 20.6 percent of the electorate, thus winning 282 seats. Congress got 19.3 percent of votes polled and 12.8 percent of the electorate but was reduced to a tally of 44 thus even missing the post of Leader of Opposition (LOP) which required a minimum of 10 percent seats in Lok Sabha having the strength of 543 members.

*In the 2019 elections, the electorate was 91.05 crore; votes polled were 61.37 crores, i.e, 67.4 percent. The BJP got 37.33 percent of votes polled and 25.16 percent of the electorate, thus winning 303 seats. The Congress, on the other hand, got 19.47 and 13.12 percent respectively, and winning 51 seats. They again missed the office of LOP.

Voting turnout has increased from 58 percent in 2004 and 2009 to 66 and 67 percent in 2014 and 2019 elections, which is good news. Still a massive one-third of registered voters have abstained from voting, which is not a negligible number and needs to be improved via compulsory voting. But much more alarming is the percentage of votes to the total electorate secured by the winning party. It has ranged from slightly over 15 percent for Congress in 2004 to about 25 percent for the BJP in 2019. This certainly needs to improve. So changes are required not only in the laws relating to NOTA but also overall voting itself.

(The writer is a former journalist. The views expressed are personal. He can be contacted at vinod.aggarwal@uniliftcargo.com)