NOTA – None of the Above

Rohan Mukherjee, National Law University, Odisha

The ideals of democracy- which comes with its share of freedoms and rights, certainly received a nudge with the fresh judgment on People’s Union for Civil Liberties v Union of India that made the installation of a ‘None of the above’ (NOTA) button mandatory on the Electronic Voting Mechines – a move that the Court believes will encourage the people of the country to be a part of the democratic process and will successfully convey to the political parties or the government that, we the people, are not exactly happy with their performance. This certainly sounds good on paper, and to the educated mass harping on about fundamental rights and democratic principles, this must have been a cause for celebration. All I felt on reading the judgment was a wall crashing down with practical flaws and naivety. In my opinion, all this judgment has managed to do is protect the right to secrecy of the voters who choose to not cast their vote in favor of any of the political parties. Purely a technical issue, which involves a high pitched tone and a few blinking LEDs.

The issues were addressed 250 years ago by David Hume in a classic work. Hume was intrigued by “the easiness with which the many are governed by the few, the implicit submission with which men resign” their fate to their rulers. This he found surprising, because “force is always on the side of the governed.” If people would realize that, they would rise up and overthrow the masters. He concluded that government is founded on control of opinion, a principle that “extends to the most despotic and most military governments, as well as to the most free and most popular.”

Our Additional Solicitor General’s argument on the issue of maintainability was that the right to vote is neither a fundamental right, nor a common law right, but is a pure and simple statutory right, legal precedents aside, although this argument was not accepted. In a democratic setup, where principally ‘everything’ rests on the will of the people, and elections are the way to convey the same, the Constitution not categorizing the Right to Vote as a Fundamental Right does not by any means exclude the right to vote as a Fundamental Right. Even if it is an extension of our Freedom of Speech, as held, the idea that if the right to vote stands alone, it won’t be treated as a Fundamental Right in a nation that is based on the democratic form of government is similar to suggesting that it is not essential to build the structure of a building with metal and concrete, plastic would do just fine.

On the other hand, I couldn’t agree more with the ASG as he rightly said that the average citizen will not travel to the polling booth and go through all the time and effort just so that he can ‘not cast his vote’ when he can easily do so by staying back at his home. In the terminology of modern progressive thought, the population may be “spectators,” but not “participants,” apart from occasional choices among leaders representing authentic power. This judgment aims to change that. An average Indian does not think in terms of participation in a democratic process, the average Indian is concerned with the direct benefits he would enjoy if a particular party is in power.

The Court also feels that having an NOTA button would effectively convey to the Government that the people are not satisfied with their performance. Because all the banners waved, rallies held, strikes and shutdowns, media trials, protests and rebellions, by arms or by ink somehow fail to convey that effectively. The Government needs an electronic button to wake up.

The judgment stated that “in a vibrant democracy the voter must be given an opportunity to choose the NOTA button which will indeed compel the political parties to nominate a sound candidate.” Since our political parties are so often moved by public sentiments, keeping aside their personal ambitions, this definitely seems like an effective incentive. Undoubtedly this sounds terribly good on paper, but presuming the nomination of candidates who possess a certain amount of integrity is not possible without turning a blind eye to the truth that they are merely puppets in the hands of their party. And this not an Indian scenario; this is human nature- a party will nominate a candidate who returns the favor. Rational people tend to work that way.

While the Court has directed the Government of India to provide necessary help for the implementation of this direction, I await eagerly for the mechanisms that they provide now. Humor me, and imagine that in an extreme case scenario, if the majority of votes are abstained, then how exactly will we form our Government? We are a nation that follows the plurality voting system, where a candidate can be elected despite the overt dissent of a majority of the people. Some proponents of the “overt consent” theory hold that the act of voting implies consent, while others question the connection between voting and consenting to a particular scheme of representative, since some voters may oppose the system as a whole but desire to influence decisions on particular issues or candidates. Even if the legislators formulate a process by which the seats of the Parliament are distributed proportionately amongst the parties that have received votes in their favor, democratically speaking, what would be the source of authority for this government- one that represents the “won’t” of the people? A Government that rules without the consent of the people. The last time I checked, the modern authoritarian government is mutually exclusive from a democratic one.

As I said before, this judgment simply manages to uphold our all-important Right to Secrecy- as with regards to how our legislators go about implementing the same, well, I for one am intrigued.