Right of Negative Voting

Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such choice. Today, there is a need of Negative Voting as indispensable “right” in order to resolve the dilemma of political nihilism and effective political participation in the present state of democratic system.

A humble endeavor has been made to bring to the fore the importance of negative voting in a democratic country. The development of the voting rights and the position of negative voting in other countries are also discussed. Arguments both in favour and against the right of negative voting are talked about.

Pressing the button of ballot machine is not just the pressing of a button but it is the expression of intelligence, sensitivity and understandings, which is fundamental for democracy to subsist.

INTRODUCTION

The preamble to the Constitution of India proclaims India as a democratic republic. India is a constitutional democracy with a parliamentary system of government, and at the heart of the system is a commitment to hold regular, free and fair elections. These elections determine the composition of the government, the membership to the two houses of parliament, the legislative assemblies of the state and union territories. Thus the concept of democracy as visualized by the Constitution presupposes the representation of people in Parliament and state legislatures by means of election.<!–[if !supportFootnotes]–>[1]<!–[endif]–>

For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote, obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits. But what if no candidates of ‘attractive merit and established characters’ comes to the election? Will the voters still have to select the lesser of two evils? Will they still have to pick from a slate of unworthy candidates in today’s world of choice? So, there is a yell for negative voting. No doubt, the right of recall is a blue-chip mechanism, but that comes into effect only when an elected candidate misuses his office. However if at the very outset all the candidates are ones, which the constituency deems undesirable, should not the sovereignty of voters, the nitty-gritty of a democratic election, require a mechanism to cast off those candidates out at the very threshold? The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy.

DEVELOPMENT OF VOTING RIGHTS

There has been constant growth of voting rights in India, as well as in other countries of the world. Ancient Greece had one of the earliest forms of democracy, since at least 508 BC. They had the system of negative election, where the voters were asked to cast a vote for the politician they wanted to exile for ten years. Voting rights in ancient Greece were only for male landowners, so the number of voters was pocket-sized. In the 13th century, the Venetian state was built up and they elected a Great Council of 40 members by introducing “approval voting”, where electors cast one vote for every candidate they find acceptable.

American history is a history of thriving voting rights. At first, only white males over the age of 21 were allowed to vote. But later there came some of the Copernican changes like black suffrage, women suffrage, adult suffrage etc.

A situation, where the right to vote is not restricted by race, gender, belief, wealth or social status, is termed as “Universal suffrage”. Corsican Republic was the first country to grant limited universal suffrage for all inhabitants over the age of 25 and which was followed by Paris Commune, the island republics of Tavolara, Franceville, New Zealand and then Finland. The 13th, 14th, and 15th Amendments to the U.S. Constitution extended voting rights to former slaves and the 19th Amendment gave voting right to women in 1920. Women still lacked this right in Switzerland until the 1970s and in Kuwait until 1990. The 26th Amendment, which was adopted on July 1, 1971, lowered the voting age from 21 to 18. The Constitution of India adopted universal adult suffrage as the basic tenet of elections. Except people of unsound mind, and people convicted of certain criminal offences, the voting right is guaranteed irrespective of caste, creed, religion or gender. It is not that voting was something new to this country. In ancient India there were provisions for elections and vote. A vote was known as ‘chhanda’ which literally means a ‘wish’. This expressive term was used to convey the idea that voting is expression of one’s free will and choice.

“Right to vote” is not a fundamental right but merely a statutory right. Suggestions have been made to make voting mandatory. But if the electors decide that none of the candidates is worth their vote, what is the way out? Some NGOs wanted the option of “negative voting” by providing an extra button in the electronic voting machines that says “none of the above” clause. There is a provision in Section 49-O of the Conduct of Election Rules, 1961 that an elector whose roll number has been entered in the register of electoral rolls in Form 17A, if decides not to vote, a remark to this effect shall be made against the said entry by the Presiding Officer and the signature and thumb impression of the elector shall be obtained against such remark.<!–[if !supportFootnotes]–>[2]<!–[endif]–> But this is of no use as it is not only cumbersome but also violates the right to secrecy while casting vote. So, a necessity is felt for negative voting to have absolute freedom while expressing ones’ choice.

Under the present law, there is no scope for a voter to refuse to vote for a particular candidate or to cast his vote against all candidates. This is different from a voter refusing to exercise his franchise at all. In a writ petition filed in the Supreme Court by People’s Union for Civil Liberties (here after referred as PUCL), it is submitted that a citizen’s right to vote at an election in secrecy includes the right of negative voting qua all candidates.<!–[if !supportFootnotes]–>[3]<!–[endif]–> The Election Commission’s stand was that if the electors had the right to know the assets and antecedents of candidates and then make their choice, there was no rationale to bar the right of negative voting. Indeed, counsel for the Commission, Meenakshi Arora submitted before the Supreme Court that the PUCL could seek directions for appropriate modification in the EVMs to enable the electors to exercise their right of negative voting.

A Bench of Justices B.N. Agrawal and G. S. Singhvi referred the case to Chief Justice K.G. Balakrishnan, for appropriate order. The issue needed to be adjudicated by a larger bench as there were certain ‘doubts’ over the interpretation of the ruling in the case of Kuldip Nayar vs. Union of India<!–[if !supportFootnotes]–>[4]<!–[endif]–> relating to a voter’s right. The court while rejecting an argument that the right to vote is a constitutional right had observed that there is a distinction between the right to vote and the freedom of voting as a species of freedom of expression. They further said that a right to elect, is fundamental to democracy, but is neither a fundamental right nor a common law right but simply a statutory right. In the case of Union of India vs. Association for Democratic Reforms<!–[if !supportFootnotes]–>[5]<!–[endif]–>, the apex court said that Article 324 is a reservoir of power to act for the avowed purpose of not divorced from, pushing forward a free and fair election with expedition…” Justice Singhvi, referred to an earlier verdict and said, “The concomitant of the right to vote which is the basic postulate of democracy is two-fold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth.”

Section 49(O) of the Conduct of Election Rules, 1961 violates the Constitutional provisions guaranteed under Article 19 (1) (a), Article 21 and the concept of secret ballot.<!–[if !supportFootnotes]–>[6]<!–[endif]–> Moreover the Universal Declaration of Human Rights<!–[if !supportFootnotes]–>[7]<!–[endif]–> mandates that suffrage shall be held by secret vote or by equivalent free voting procedures. To similar effect is the mandate of Rule 49-M of the Conduct of Election Rules Act, 1961, which requires the maintenance of secrecy in voting and Section 128 of the Representation of People’s Act, 1951, which requires maintenance of secrecy in voting by every officer on duty. Thus there is a need for right of negative voting. So, the Election Commission should provide one extra button in the electronic voting machine, which will enable the voter to exercise his right, in secrecy and will also convey a memorandum of anger of the voter to the political mentors.

NEGATIVE VOTING IN OTHER COUNTRIES

Negative voting does exist in other countries but not the same expression is in use. Many countries have the option of “None of the above” on ballots, as a standard modus operandi. The U.S. state of Nevada has the option “None of these candidates”, Ukraine has “Against all”, France has “vote blanc”, Spain and Colombia has “voto en blanco”. Russia had “Against all”, which was abolished in 2006. In 2006, Massachusetts included “None of the above” as an option.<!–[if !supportFootnotes]–>[8]<!–[endif]–> Negative voting legislation has been introduced in Wyoming, Colorado, Michigan, Ohio, Pennsylvania, and Arizona, but has not come near passing anywhere yet.<!–[if !supportFootnotes]–>[9]<!–[endif]–> Negative votes give citizens a veto in the real sense of the term. They can veto all the candidates presented to them and demand a new election with better candidates. Negative voting could help in checking criminalize cum communal and castism cum class politics.

ARGUMENTS FOR NEGATIVE VOTING

We have accomplished a stage in human civilization, where we really feel the need of Negative Voting as indispensable “right” in order to resolve the dilemma of political nihilism and effective political participation in the present state of democratic system. When voters feel disgusted at the nomination of undesirable candidates, they just could not able to convey their message of non-cooperation. On the other hand giving people this choice of negative voting would give them a reason to go to the polls even though they don’t like any of the candidates. It assures one, secrecy and encourages him to exercise his right, which will send a knockout message to the conceited politicians. This will also enhance the participation of urban, educated and rich people. Legislation needs to be enacted to provide that if negative votes gets highest vote, the election will be countermanded and a fresh election will be ordered. This change will be a warning to the political parties that decision about the choice of candidate is not the sole prerogative of a clique within the party. It must involve the voters at the very stage of selection and the candidate will not be a dumb helpless spectator. This provision exists in other countries; so, why can’t, in India. It is agreed election in India is too expensive. But in the name of expenses or any other excuses, the State cannot deny this right to the people.

With conventional ballot papers, a voter could drop a blank sheet or stamp wrong to cancel or nullify the vote. That was an indicator of the voter’s disillusionment with the choice given. But the EVM has no such option. An elector can refuse to vote after being identified only but that defeats the purpose of a secret ballot. A negative vote takes the matter a step further by ensuring that a voter can choose ‘none of the above’ secretly.

Secondly, negative voting will curtail the significance and role played by caste and religious factor in the electoral process. There is hardly any constituency in the country, where any particular caste can command more than 50% of the votes. This means that a candidate has to carry with him several castes and communities, to succeed. Now the parties will try to fight on ideologies and programmes rather than on caste or religious vote banks. It is the best measures to make our electoral system more representative, fair and transparent, to strengthen our democracy, to arrest and reverse the process of proliferation and splintering of political parties and to introduce stability in our governance.

No doubt this method calls for a run-off and a fresh election in case no candidate obtains 50% or more votes even in the run-off, and in that sense expensive and elaborate, yet it has the merit. It will forward good candidates and eschew bad characters and corrupt elements.

There can be no dispute that the idea and its underlying object are both laudable. Besides, the advantages pointed out, this method of election also acts as a powerful disincentive against voter intimidation.

ARGUMENTS AGAINST NEGATIVE VOTING

The counter arguments are also inviolable and logical. In our country there are eight National parties, around 50 State parties, and more than 400 registered parties. So, the confusion among the voters is obvious. When majority of the voters are not even aware of these parties, their representatives and their objectives, it will be an erroneous idea to talk about negative voting. When a large number of voters of this country are uneducated, illiterate, and when the government is still struggling to encourage its citizens to at least vote, negative voting as a right may not help.

The elections to Lok Sabha or for that matter Legislative Assemblies in bigger States are not held on one single date. Elaborate arrangements have to be made to establish polling booths, to requisition, allocate and transport the personnel to man the polling booths, and the transport and stationing of police and other paramilitary forces and so on. Because of these factors and considerations, elections are held on two or more dates. In this stage it is unwise to talk about Negative Voting because it adds up visibly the protest vote on the ballot-an expression of public “no confidence”-and if it exceeds that received by the candidates, the elections are nullified and new elections with new candidates is ordered.<!–[if !supportFootnotes]–>[10]<!–[endif]–>

Moreover democracy involves selection from available choices. In this context, it could be argued that ‘vote for none of the above’ is a negation of the democratic principle. The notion of ‘negative voting’ is being highly contested. There are arguments both in favor and against this notion. Nonetheless, it is agreed to the core that the voters of this country should be given negative voting as a right. It is because not providing the same will be amounted to negation of constitutionalism and opposed to the most cherished provisions of the Constitution. Often, an Indian voter is faced with the choice between a crook and a criminal, which is no choice at all. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively is against the principles of upholding the dignity of the human personality and defeats the freedom of expression provision and the right ensured in Article 21 i.e. the right liberty. It is also against the equality clause of Article 14 of the Constitution.

Our politicians take great pride in calling India as the largest surviving democracy but the same pride is however missing in the elections. Bhagwati, J., has opined “Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic setup. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice…”<!–[if !supportFootnotes]–>[11]<!–[endif]–> The concept of negative voting has also been discussed and recommended for consideration by the Law Commission. In every democracy, the process of election should be free, fair and equitable. Our Constitution and the Representation of the People Act, seek to provide for a free and fair election. Moreover negative voting is a step towards fair election.

CONCLUSION

All legitimate consent requires the ability to withhold it. This right gives the voter the option to withhold consent, just as voters can cast a “No” vote on a ballot question. Negative voting is a claim, having “duty” as jural correlatives in Hohfeldian sense, which allows, the voters to reject all the candidates that are in the fray. Right to vote must be liberally construed like Article 19 (1) (a) because Negative voting acts purely as a repository for protest votes, by which citizens who want change can mobilize an anonymous protest candidacy around agendas that are regularly ignored by the established politicians.

Under the Court’s current stand and legislature’s jurisprudence, there is no clear answer to the question, whether the voter’s can have something called “right of negative voting” or not. But nevertheless it is essential.

People should not waste their vote for lack of good choice by voting compulsorily for a candidate, as there exists’ no option. Thus a mechanism is required to register the protest and bring electoral reforms. Let the voters decide the fate of the political parties’ choices, instead of the parties deciding the voters’ choices.

 

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Tagged as: election, fundamental rights, Negative Voting, right to vote