The NOTA Option

By Prabhakar Timble
01 October 2013 05:45 IST

The recent judgments of the Supreme Court relating to elections, voting, and disqualification of convicted legislators and candidates in police custody from contesting elections could be best described as flagging off good intentions but the argument that they would bring a systemic change in the profile of legislators lacks plausibility. The Ordinance promulgated by the government with the underground consent of all the political parties to nullify the Supreme Court verdict of ‘automatic and immediate disqualification’ of a sitting legislator, awaiting the assent of the President is unlikely to see the light of the day after Rahul Gandhi slamming it as nonsense.  Though the public opinion is building up against this Ordinance, this legislation also upholds that a convicted legislator stands disqualified. The only provision that it attempts to introduce is to provide a space of ninety days to the convicted person for appeal. The Supreme Court itself should have provided such legal safeguards knowing the state of the subordinate judiciary and that all judicial orders cannot be assumed to be legal, fair and just.

Knowing the hold of the political executive on the law enforcement machinery, the verdict in respect of persons in police custody being barred from contesting elections is controversial with a loaded potential for misuse against political opponents. It would be in the fitness of things if the Supreme Court reviews this order and provides in-built protective cover. Though the fact that politician with criminal antecedents being seen in legislative bodies cannot be denied, the remedy for this should not be in the form of a bad judge-made law which creates new problems including false reports by political rivals to send persons to police custody or jail.  Attempts by the higher judiciary to clean politics should not make it murkier. This verdict needs a relook and correction.

‘NOTA’ not right to Reject

The statutory right to vote culminates in a choice. The focus is to elect and not to reject. The debate on giving the right to reject all the contesting candidates at an election is gaining substance mainly on account of the questionable history of candidates thrown by political parties. However, it needs to be underscored that democracy and participative governance is through selections of alternative preferences as opposed to rejection of all options.  The right of rejection may provide juicy pleasure but cannot offer solutions.

Many read the verdict on providing the option of “None of the above” on the ballot paper/EVM as amounting to the grant and recognition of a right to reject to the voter. This is not at all true. Provision of such a right would require an intervention by the legislature. It cannot be done by a judicial order when the statutory law provides that the candidate polling the maximum votes would be declared elected.

The provision of ‘NOTA’ is not an innovation by the Supreme Court. It was already incorporated under Section 49 of the Conduct of Election Rules. Any elector or voter desiring to exercise the neutral/negative voting was required to make a requisition to that effect. With the present verdict of the Supreme Court, “NOTA” is brought in the routine stream. The clear advantage is the maintenance of the secrecy of ballot in respect of such voters. However, this cannot be construed as empowering the elector with a right to reject. Even if the votes under “NOTA”    constitute more than 50% of the votes polled, the result of the election would be determined from amongst the candidates against whom the votes have been recorded.  As a result, votes under “NOTA” are more akin to the bunch of invalid votes. At the most, it could function as a barometer of frustration, dissatisfaction and disapproval. From the operational point of view, it remains a powerless and toothless alternative.

The pervading climate of politics as the safe haven of scoundrels causes damage to the idea of democracy and justice.  That no candidate is worthy should not be the presupposition.  The power of ‘NOTA” could result in the election of the worst amongst the contestants as opposed to the reasonably good if a large chunk of voters choose to exercise such an invalid option. ‘NOTA’ being a novelty may have takers in selected urban pockets. Voting is a sacred duty only if we exercise it positively. If an enforceable right to reject was provided, it was a different issue.

Crime, Criminalization & Conviction

The conviction rate in our country is around 38% on an average. The index of crime and criminalization is extremely high. The convictions are poor indicators of criminalization of politics. The percentage of legislators with pending criminal charges is in the range of 15 to 20 per cent. In some State legislatures it is in the ambit of 40 to 45 per cent.  Courts and the system of administration of justice are responsible for long gestation period to result in final conviction or acquittal. For instance, the verdict in respect of the 1980 fodder scam involving RJD boss Lalu Prasad Yadav will be delivered after nearly 20 years. This verdict would be from a subordinate court and the aggrieved would file for review in higher courts.  Under such circumstances, it is doubtful whether the recent verdicts of the Supreme Court in respect of disqualification of convicted legislators would clean the quagmire of politics. Deterrence to political parties in the choice of candidates could come only if there is sharp improvement in conviction rates and an equally sharp decline in the disposal of criminal matters involving politicians and ministers.

The political parties have to play the pro-active role to improve the quality of legislators in parliament and state legislatures. As regards, crime and criminal antecedents of politicians, it is visible to the people and political parties, though not discernible in the eyes of the lawman. It is necessary that political parties provide better to the institutions of democracy. Little can be expected when political parties deliberately choose and project persons facing serious criminal charges and allegations to occupy even the topmost berth in the national Executive only because the material evidence is little less than sufficient.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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