AMIDST A PERIOD OF PUBLIC PROTESTS, democratic disenchantment this year, the judiciary delivered a series of decisions shaping the law that governs the structure of Indian democracy. In June, the Central Information Commission held that political parties fell within the ambit of the Right to Information Act, 2005. A month later, on 10 July, the Supreme Court found it unconstitutional for sitting legislators to be subject to qualifications that were distinct from those that applied to prospective legislators, thereby holding that a convicted legislator could not simply file an appeal and stay in office. The convict would still have a remedy, but he would have to receive a stay on the conviction (which would turn on the merits of the case), rather than merely file an appeal (which anyone could do regardless of the soundness of the conviction). Both these decisions evoked political controversy, and Rahul Gandhi’s outburst against the cabinet’s decision to undo the latter judgment only added to the debate. But, significant as these decisions are, on 27 September, the Supreme Court delivered a verdict with potentially far greater consequences: it directed the Election Commission to provide for a “none of the above” (NOTA) option in electronic voting machines.
The natural reaction to the decision has been to explore its implications for electoral politics, but it is worth noting that the primary question before the Court was a legal one. In its enthusiasm for political reform, the Court delivered a judgment with a set of ambiguities that may have serious consequences in future elections. The Court’s verdict rightly suggested that electronic voting machines should have a NOTA button, to allow voters to reject all available candidates and abstain in secrecy. But, in a peculiar leap of logic, its judgment also implied that this rejection should be counted as a vote, with the numerical weight to alter an electoral outcome.
The three-judge bench was reviewing a challenge by the People’s Union for Civil Liberties to provisions of the Conduct of Election Rules, 1961. Under the current system, if an elector decides not to record his vote, the Presiding Officer must make a note of it and, subsequently, the signature or thumb impression of the elector has to be obtained. In other words, the record maintained by the Presiding Officer will reveal the elector’s decision not to vote. The question before the Court was whether this violated Section 79(d) of the Representation of People Act, 1951 (RPA), under which an “electoral right” includes a right to refrain from voting, and Section 128 of the Act, which guarantees secrecy of voting.