Context: Eight years after giving voters the option to use NOTA – that’s None of The Above option in the elections, the Supreme Court has now sought responses from the Centre and the Election Commission of India on whether it would be legally permissible to reject all candidates in the fray if NOTA votes exceeded that of the candidate securing the highest number of votes. The top court was hearing a plea filed by advocate and BJP leader Ashwini Kumar Upadhyay, that seeks to direct the poll panel to nullify an election result and conduct a fresh poll if the maximum votes are for None of the above in a particular constituency. The petition says that the right to reject and elect a new candidate will give power to the people to express their discontent. If voters are dissatisfied with the background or performance of contesting candidates, they will opt for NOTA to reject such candidate and elect a new one. The contesting candidates rejected in the nullified elections, shall not be allowed to participate in the fresh election. This, the petitioner, contends, will help check the steadily rising percentage of candidates with criminal antecedents and their chances of winning. Although, while hearing the plea on Monday, CJI Bobde said that in our electoral system, such a move would be counter-productive. Many seats in Parliament and assemblies could go vacant and constituencies would go unrepresented for a long time. 
The use of NOTA in elections

• The option of NOTA for Lok Sabha and assembly elections was prescribed by the SC in 2013. The option of NOTA in RS polls was introduced by the EC in 2014. Thus, India became the 14th country to institute negative voting.

How is a NOTA vote cast?

• The EVMs have the NOTA option at the end of the candidates’ list. Earlier, in order to cast a negative ballot, a voter had to inform the presiding officer at the polling booth. A NOTA vote doesn’t require the involvement of the presiding officer.

Why have NOTA if there’s ‘no electoral value’?

• NOTA gives people dissatisfied with contesting candidates an opportunity to express their disapproval. This, in turn, increases the chances of more people turning up to cast their votes, even if they do not support any candidate, and decreases the count of bogus votes.
• Also, the Supreme Court has observed that negative voting could bring about “a systemic change in polls and political parties will be forced to project clean candidates”. 

Why NOTA is good?

• NOTA option will force the political parties to select the honest candidates, i.e with no criminal records.
• NOTA ensures people’s ‘right to freedom of speech and expression’.
• This will increase the polling percentage.

Significance of NOTA option

• Disapproval: NOTA gives people dissatisfied with contesting candidates an opportunity to express their disapproval. For instance, a group of women activists in Kerala out on the road urging people not to elect any candidate if no woman was present in the fray, and a youth group in Tamil Nadu that campaigned for NOTA as a protest vote against corruption.
• Participation in voting: NOTA motivates citizens to participate in elections. Observations have been made that NOTA can influence more citizens to participate in voting.
• Prevent bogus votes: With increased chances of more people turning up to cast their votes, even if they do not support any candidate, it decreases the count of bogus votes.
• Enable right to reject: This enables voters to exercise their right not to choose a candidate and register a vote of rejection.
• Right to secrecy: Earlier, since the ballot paper or EVM showed only the list of candidates, a voter could record his vote under Section 49-O (None of the above) but had to inform the presiding officer at the election booth. This compromised the secrecy of his ballot. NOTA removed this provision and enabled maintenance of citizen’s right to secrecy.

NOTA- a toothless option

• No electoral value: The vote does not hold any electoral value and is merely symbolic in nature. Even if a majority of votes were cast for NOTA, the candidate with the largest vote share would still be the winner.
• Not a right to reject: It has been argued that NOTA is not ‘the right to reject’ the candidates standing in the election, but instead the ‘right to register a negative opinion’.
• Lack of awareness: NOTA has not reached the grassroots level and most people are unaware about the option on the EVM machine or what it entail.
• Caste bias: It has been observed that some of the highest NOTA votes polled are consistently seen in reserved constituencies. This could be interpreted as a refusal of general category voters to vote for an SC/ST candidate- a scenario where NOTA is being misused to uphold caste-based bias.

Suggestion

• Re-elections: If NOTA receives the highest number of votes, re-election should be held in that constituency with a new and fresh candidate. In 2018, the Maharashtra State Election Commission (SEC) issued an order that ‘if NOTA received the highest number of valid votes, a fresh election shall be held’.
• Barring candidates: The candidates securing votes less than NOTA would be barred from contesting in that re-election. In November 2018, the SEC of Haryana issued an order where NOTA is treated like a ‘fictional candidate’ in municipal polls. If NOTA gets maximum vote, none of the ‘real’ candidates will be declared elected and the elections will be held afresh. The candidates securing votes less than NOTA would be barred from contesting in that re-election.
• Cost on candidates: Political parties that lose to NOTA should bear the cost of re-election. When conducting re-elections, the NOTA button may be disabled to avoid a series of re-elections.
• Short time ban: The candidates who lose to NOTA should not be allowed to contest elections for a defined period of time.
• Awareness: While NOTA is definitely providing a voice to dissent, it needs to be accompanied with efforts to raise voter awareness to prevent the misuse of this measure.

Road Ahead

• The Supreme Court has anticipated, there will be a systemic change with NOTA and the political parties will be forced to field candidates who are known for their integrity. Efforts must be made to ‘strengthen’ the impact of NOTA by providing it the power to reject and asking for re-elections if NOTA wins the majority.