[Reader-list] Negative Voting - Allowed or Not

[Rakesh Iyer]

Dear all

As I had earlier said, I think we need to go away from just identity-based
issues, for there are a whole other gambit of issues which we need to
discuss about. To go forward, I have put up this article from India
Together. The link is:

 http://indiatogether.org/2009/mar/gov-negvote.htm

I put up this article, because with the elections near, I think this is an
important issue. On one hand, the urban middle class is so much disgusted
with politicians (a sample was the kind of reaction seen after Mumbai terror
attacks), that they think 'sab politicians chor hain'. On the other hand, we
have our villages where voting rates are generally seen to be quite high.
But again, 100% voting is not seen everywhere.

And certainly, when it is a right to vote, there should also be a
complementary right to not to vote. Or shouldn't it be there? This article
captures the debate of having it or not.

Regards

Rakesh

Article :

ELECTORAL REFORMS
* SC keeps door open on negative voting *
 A two-judge bench of the Supreme Court has referred the question of whether
voters should have the option to declare their lack of confidence in all the
candidates on a ballot to a Constitution bench. Kannan Kasturi reports.
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*09 March 2009* - It is election summer, and the leaders of the major
political parties are busy nominating candidates whose most important
qualification will be the ability to take advantage of the local caste or
community arithmetic in their respective constituencies. In these
pre-election games, neither those who do the everyday work of parties nor
those who vote them in and out of power have anything to do with selecting
candidates. Naturally, then, one is led to ask - on Election Day, should the
voter have the choice to reject all candidates - by selecting a 'None of the
above' option on the electronic voting machines - if he finds them all
unsuitable?

 The proposal for allowing what is commonly termed the 'negative vote' was
debated for many years before it reached the doors of the Supreme Court as
the substance of a Public Interest Litigation (PIL) in 2004. A two-judge
bench of the Supreme Court, disposing this petition on 23 February 2009,
found sufficient merit in it to recommend its consideration by a larger
Constitution Bench; the Government of India, opposing the petition, had
argued for its outright dismissal.

 This proposal for electoral reform is just one example of the many that
have been languishing for years for want of action on the part of the
Government. The history of these attempts at electoral reforms provides
valuable insights into the forces ranged for and against them. But first, it
will be useful to consider the problems of the elector today, and the
arguments advanced for and against the negative vote.

*Lack of interest or disapproval?*

 What are the choices before an elector today if s/he is presented with an
undesirable set of candidates? There is an obscure provision in the current
election rules that allows a voter to merely register his presence at the
booth with the polling officials without voting for any candidate. But this
option is not secret, and as a result one can expect it to be rarely used,
and that indeed that is the case.

    The major political parties, notwithstanding their differences, share a
strong common vested interest in denying greater rights and freedoms to the
electors, and have closely co-operated in Parliament to defend the status
quo in electoral law.


  *  Full coverage: Electoral
reforms<http://www.indiatogether.org/govt/elections/ncer/>
  *  Towards positive
change<http://www.indiatogether.org/2009/feb/rgh-elections.htm>
   There are other ways of expressing dissatisfaction with the slate of
candidates. Voting for the least unacceptable candidate is another option,
but this is only possible when at least one candidate meets the minimum
threshold of acceptance for a voter. The more common practice, among those
who aren't particularly enamoured of any of their potential representatives,
is to stay away from the polling booth altogether, and over 280 million
electors did just that during the 2004 Lok Sabha elections. But abstaining
electors inevitably invite the charge of being uninterested in the affairs
of the nation, and of failing to be good citizens. The recent Tata
Tea/Janaagraha-led *jaago re* campaign epitomises this view in the lines "On
election day, if you are not voting, you are in slumber...".

 Against this backdrop, the introduction of a 'None of the above' option in
the ballot is expected to give the elector a legitimate way of expressing
disapproval of candidates in an election without appearing to boycott the
proceedings as a whole. As a positive side effect to this, incidences of
bogus voting through impersonation of absent voters should come down. There
is also perhaps an optimistic view that negative voting will lead eventually
to better candidates. The Law Commission in its *170th report on Reform of
Electoral Laws*, while recommending the negative vote, explained its
benefit: "the negative vote is intended to put moral pressure on political
parties not to put forward candidates with undesirable record i.e.,
criminals, corrupt elements and persons with unsavoury background".

 However, it has been pointed out that such pressure would be more likely to
work, if, the negative vote also carries weight in determining the outcome
of an election. For example, the election rules could provide for a
re-election in case 'None of the above' option receives more votes than any
candidate, and also bar the original candidates from contesting again.

 Critics of the negative vote option do not find anything wrong in principle
with the measure. Rather, their criticism is that it may be impractical to
implement, that it is unlikely to change voting patterns, and hence
unnecessary. Examples are cited of countries with the negative vote where it
has not made a great difference. The State of Nevada in the United States
has a 'None of these candidates' option in its ballots and votes gathered
under this option are reported, though the 'first-past-the-post' candidate
is always declared elected. In the recent presidential elections in the US,
only 0.65 per cent of the voters of Nevada voted against all the candidates.


 Still, the negative vote option - even if it is unlikely to change voting
patterns - is unlikely to cause harm, and may in fact help to improve the
quality of candidates. The opposition to it, therefore, should be seen in
light of the stumbling blocks that have been placed before other equally
innocuous measures for electoral reforms by the major political parties. It
is also noteworthy that the recent history of attempts at electoral reforms
shows the major political parties, notwithstanding their differences,
sharing a strong common vested interest in denying greater rights and
freedoms to the electors and closely co-operating in Parliament to defend
the status quo in electoral law. As a result, the burden of championing the
interests of the elector has been left to civil society.

*The elector's right to know*

 In 1999, the Association of Democratic Reforms filed a PIL in the Delhi
High Court requesting the court to direct the Election Commission (EC) to
collect and make available to the public, details of pending criminal cases,
if any, from candidates in their nomination forms by amending the Conduct of
Election Rules and obtained a favorable ruling in 2000. The Government of
India immediately appealed against this ruling to the Supreme Court. The
Supreme Court, upholding the High Courts judgment in 2002 explained its
reasoning:

 "Under our Constitution, Article 19(1)(a) provides for freedom of speech
and expression. Voter's speech or expression in case of election would
include casting of votes, that is to say, voter speaks out or expresses by
casting vote. For this purpose, information about the candidate to be
selected is a must. Voter's (little man-citizens') right to know antecedents
including criminal past of his candidate contesting election for MP or MLA
is much more fundamental and basic for survival of democracy. The little man
may think over before making his choice of electing law-breakers as
law-makers."

 The Court also determined that while the Election Commission was bound to
act in conformity with laws made by Parliament or State Legislatures
relating to elections, it was empowered by Article 324 of the constitution
to take the necessary steps for conducting free and fair elections where the
law was silent. The Court directed the EC to use these powers to collect
information from candidates in an affidavit about criminal convictions,
pending cases, assets & liabilities and educational qualifications. The EC
complied by issuing an order in June, 2002 to implement this decision.

 The political establishment was extremely uncomfortable at this turn of
events. An all-party meeting in July 2002, presided over by the Law Minister
with the then Deputy Prime Minister L K Advani in attendance, decided to
introduce a bill in Parliament to amend the Representation of the People
Act, 1951 to define the scope of disclosures to be made by candidates. The
bill, passed as an ordinance by Government and later approved by Parliament
in December 2002 limited the disclosures that could be sought from
candidates by the EC. The Peoples Union for Civil Liberties (PUCL)
challenged the constitutionality of sections of the amended Law. In March
2003, the Supreme Court declared some of the modifications to the
Representation of People Act, 1951 carried out by Parliament to be
unconstitutional and restored the disclosures from candidates sought by the
EC.

 Through these court battles, a small concession had been wrested in favor
of the elector's right to know about candidates who seek to represent him
(see *India Together's* earlier coverage of this struggle at this
link<http://www.indiatogether.org/govt/elections/ncer/>).


*The elector's right to reject*

 Way back in 2001, the Election Commission approached the then National
Democratic Alliance government with the proposal of introducing negative
voting. There was no response from the government. In July 2004, after the
UPA was voted to power, the EC again approached the government with a set of
"urgent proposals for electoral reforms" including the negative voting
proposal. On the question of negative voting, the EC had this to say: "The
Commission has received proposals from a very large number of individuals
and organizations that there should be a provision enabling a voter to
reject all the candidates in the constituency if he does not find them
suitable ... The Commission recommends that the law should be amended to
specifically provide for negative / neutral voting."

 Yet again, there was no response from the Government. With the experience
of the struggle to establish the elector's right to know, and seeking to
push through this reform in the face of an intransigent government, the
Peoples Union for Civil Liberties approached the Supreme Court in 2004
seeking directions to the EC to provide for negative voting in full secrecy.
Incidentally, around this time, the BJP spokesman and former Law Minister,
when contacted about the PIL, remarked that "it is a debatable issue and
there should be a thorough debate among the cross-section of people..." (*The
Tribune*, Chandigarh, 25 January, 2005). But the debate had been already on
for a mere 7 years or so!

 With the recent ruling of the Supreme Court this year on this PIL, it will
be left to a Constitution bench to decide whether the right to vote in
secrecy and the right to reject all candidates flow from fundamental rights
guaranteed in the constitution and if the scope of the powers of the
Election Commission can extend to implementing mechanisms for negative
voting. If the right of the voter to positively reject bad candidates is
recognised, it will be another step, albeit small, along the difficult road
of electoral reforms. *¨’*

 *Kannan Kasturi*
<kasturi_kannan at yahoo.com,%20editors at indiatogether.org?subject=Feedback:%20SC%20keeps%20door%20open%20on%20negative%20voting>
09 Mar 2009

 * Kannan Kasturi is an independent researcher and writer on law, policy and
governance. *