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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.

The state was against allowing citizens to abstain in secrecy. It argued that the principle of ballot secrecy applies only to those electors who vote for a particular candidate and not to those whose do not vote at all. It is not clear why this should be so. While secrecy guards against one being coerced into voting for a particular candidate, the potential for abuse exists even when an elector chooses to abstain from voting. Given that the RPA allows electors to refrain from voting, it follows that it must also grant them the right to make that choice in secrecy. On this point, the Court rightly concluded that regardless of whether or not the voter casts his vote, secrecy must be maintained.

But the Court’s remedy exceeded this basic conclusion. To ensure secrecy, a NOTA option must indeed be available in electronic voting machines, but it does not follow that such a vote must be counted towards the final tally—a neutral vote, which should have no arithmetic value when evaluating a winning total, is not the same thing as a negative vote. The Court appears to have missed this distinction, and declared that the NOTA option “will indeed compel the political parties to nominate a sound candidate”. It observed that “when the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.”

The self-proclaimed reformative implications of the Court’s decision suggest that exercising the NOTA option will indeed be counted as a vote. But such a conclusion does not follow from the RPA at all. The statute simply offers electors the right not to vote—making it clear that voting is not compulsory—and the right to express their vote in secrecy. The Court could have guaranteed both these rights without extending its directives to include a negative vote, something that is beyond the scope of the RPA, as well as that of the constitutional provisions that guarantee free and fair elections.

The Court’s conclusions about the effects that NOTA would have were particularly odd, given its reference to traditional voting procedures in the judgement. The Court observed that while under the paper system, “it was possible to secretly cast a neutral/negative vote by going to the polling booth, marking presence and dropping one’s ballot in the ballot box without making any mark on the same … under the system of EVMs, such secret neutral voting is not possible”. But the Court omitted to note that, under the former system of paper ballots, although electors had the option to vote against all available candidates in secrecy, these votes in fact, were not counted towards the electoral outcome. This suggests that the Court itself might have been unclear about what precise remedy it intended to provide. In interchangeably using the words “neutral” and “negative”, the Court muddied the waters.

Instead of limiting itself to the narrow question of administrative law before it—the question of whether the Conduct of Election Rules have been framed in accordance with the RPA—the Court launched into a wide-ranging discussion on the democratic essence of the right to vote “negatively”. Such an inquiry seems warranted only if the RPA was itself under challenge and the Court had been asked to consider whether the Act was in violation of a constitutional guarantee of negative voting. Strangely, at certain points in the verdict, the Court seemed to genuinely believe that the RPA itself was under challenge, for it observed that “not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.”

The Court drew a bizarre distinction between the “right to vote” and the “freedom of voting”, holding that the former is a mere statutory right whereas the latter is guaranteed by the constitutional right to free speech and expression. This distinction is a specious one—freedom of voting means nothing without the right to vote. The Court, here, was following previous decisions that made this distinction. The effort, in those decisions and in this one, was to try and find a specific provision in the Constitution guaranteeing the right to vote. But no single provision articulates that right and, unable to make sense of this reality, the Court attempted to locate the act of voting within the right of free speech and expression. This is all unnecessary sophistry: the right to vote naturally follows from Articles 324-329 of the constitution (the chapter on elections).

If an action of the executive is being judged to check if it conforms to a legislative enactment, the only relevant constitutional provision is Article 14, the overarching equality clause, which has been held to empower courts to review executive action. During a rare moment of clarity, the Court seemed to recognise this, holding that “Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons.” This principle should have been sufficient to answer the matter at hand, and makes it singularly clear that the Court’s discussion of the right to vote was beside the point.

The Court must urgently clarify its decision, because its numerous references to how the decision will remedy India’s democratic maladies lay the field open for a bewildering variety of conclusions. Does the judgment imply a move towards a system by which, if NOTA votes exceed those of any single candidate, the election might stand cancelled? The Court appeared convinced that its decision will reform our ailing political system. It thinks, for instance, that fewer criminals will enter politics. But such a conclusion is hardly self-evident. There is little we know about what kinds of electoral pathologies such a system will engender.

None of this is an attempt to argue against negative voting. Any society is free to embrace a democratic system that incorporates such voting—it can choose to draw a moral equivalence between a vote in favour of a candidate and the rejection of all candidates. It is only to suggest that such a decision, however good or bad on its own terms, is not one for courts to regard as demanded by democracy. And it is not one that is required by either the RPA or the constitution. They require secrecy and they allow abstaining. In suggesting that these conditions necessitate the counting of a negative vote, the Supreme Court has exceeded its brief.