Paper on the Option of NOTA (None of the above), why we need the option of NOTA and how it is implemented in India.
What are the consequences before the implementation of NOTA and the after implementation of NOTA

Introduction
As we all knows that the election plays very important role in our democratic countries. Our Constitution created various constitutional bodies like Legislature, Administrative, Judicial bodies apart from these bodies the nation require independent and powerful constitutional mechanism which will hold elections throughout country and the citizens of our country have equal chance to choose their representatives. It should be conducted in free and fair conditions and free and fair election is the basic structure of our constitution.

So my research topic is:
what is the need of the NOTA (none of the above) and why it should be implemented in our Country? As we know that in our country most of the citizens are not interested in giving vote to any of the representative/party and also unaware about their rights, the right to vote which is granted by Article-326 of our constitution. Those citizens who are given their vote and exercise or participate in the election by express the will.

So the main purpose of implementing the concept and option of NOTA to attract those people who are not show their willingness to giving votes in the election and who does not want to participate with the reason to incapable candidates according to them.

NOTA (None of the above)

The concept of given the votes in the election to relate the citizens show their expression and will power. Being citizens of our country does not want to participate with the reason that to uncapable candidates according to them. That means according to them such candidates are not able to represent them in that way the people wants. So to attract the people to participate in the election the Election Commission introducing the option of NOTA while exercising of their right which is not granted by our constitution.

The NOTA has no electoral value at all, those people who give their consent or show their preference against NOTA have no will to give the vote any of the Candidate and such candidate are uncapable candidates according to them. It has both the effect in our society ‘negative and positive' as well.

To choose the option of NOTA not mere means the disapproval but they express the dissent that is clearly visible. When the representative of the state or legislative member of the assembly not fulfil the basic requirements of the society like roads, electricity and water supply etc. then citizens express their dissent to vote against the NOTA. It is a kind of the democratic protest against the government who fails to fulfil their needs. Instead the option of NOTA, the political party can't restrain the people to not to vote which would amounts to the infringement of the citizens rights which is granted under our constitution. [i]

In India the option of NOTA firstly used in Chhattisgarh in 2009 in local government elections. The option of NOTA used in Assembly Elections in 2013 in four states i.e Chhattisgarh, Mizoram, Rajasthan and Madhya Pradesh and the national capital territory. Firstly in 2017 in the Gujarat's Assembly election the NOTA secured the more votes as compared to the winner candidate, similarly in 2018- Karnataka, Madhya Pradesh, and Rajasthan.[ii]

View of Supreme Court
In the case of Shailesh Manubhai Parmar v. Election Commission of India, the writ petition was filed under Article-32 of our constitution by who is the Chief Whip of the Indian National Congress party member in the Gujarat Legislative Assembly on Aug.1,2017. The member of such party challenged the availability of the option of the NOTA.

Such member contained that the Election Commission of India had issued directions to the Chief Electoral Officers that the option of NOTA could be applicable in the elections of the Rajya Sabha in all the states and the UT (except Andmanand Nicobar Island, Chandigarh, Dadra and Nagar Haveli, Daman and Diu and Lakshadweep) and also contained that the said option shall be printed on the ballot paper is printed in language in which such ballot paper will be printed as per under the direction and as per the prescribed Rule 22(1) Rule 30(1) read with the Rule 70 of the Conduct of Elections Rules,1961.[iii]

But as we know that such option which was introduced by the Election Commission is contrary with the Article-80(4) of our Indian Constitution and also considered as unconstitutional. Election Commission has no right to entertain such power of that extent. Regarding this matter, the decision will be given in this case People's Union for Civil Liberties (PUCL) and another v. Union of India (U.O.I).[iv]

It is also written in such case, section-59 of Representation of the People Act,1951 contained the manner of voting and section-169 of the said Act empower to the Central Government that it may make any rules regarding the elections after the consultation with the Election Commission. Rule 70 provides that Rules 37(8) to 40A shall be dealt to the provisions of the voting in election but the said option not conceive under the Rule 71 to 76 which has been brought in by issuance of circular by the Election Commission.[v]

The provision of NOTA which is mention in the ballot paper, applicable by the Election Commission to the Rajya Sabha effectuate or put into the force of the rights of the electors which guaranteed under section- 79A of the said Act and such option of NOTA doesn't take away the rights of the elector by not give the vote to any of the candidate but it is express the will of the electors by rejecting them as a representatives on behalf of them. The option of NOTA also applicable in the election of Rajya Sabha but it can't exercised at that time of Rajya Sabha election.[vi]

The definition and meaning of the vote stated in the case Lily Thomas v. Speaker of Lok Sabha and others that, the voting is the formal expression of will or opinion of such person who are entitled to exercise the right to vote and such right exercise in the form of favour, against, resolution, neutral. Right not to vote is equal to the NOTA when the elector give their preference against such option as per the Representation of the People Act,1951 and said rules.

Further contended that: A positive - right not to vote is a part of expression of a voter in a parliamentary democracy and it has to be recognised and given effect to in the same manner as right to vote. A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates in the field worthy of his vote. One of the ways of such expression may be to abstain from voting, which is not an ideal option for a conscientious and responsible citizen. Thus, the only way by which it can be made effectual is by providing a button in the EVMs to express that right. This is the basic requirement if the lasting values in a healthy democracy have to be sustained, which the Election Commission has not only recognised but has also asserted. [vii]

The Court further considered the stand of the Election Commission that in the larger interest of promoting democracy, a provision for NOTA should be made in the EVMs/ballot papers, for such an option, apart from promoting free and fair elections in a democracy, will provide an opportunity to the elector to express his dissent or disapproval against the contesting candidates and will have the benefit of reducing bogus voting. Eventually, the Court held that Rules 41(2) and 41(3) and Rule 49-O of the Rules are ultra vires Section-128 of the said 1951 Act and Article-19 of our Constitution to the extent they violate secrecy of voting. Furthermore held that-

Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realise 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 direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one.

Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate thinks about them. The court directed that in such case to the Election Commission to make the necessary provision which related to the option of NOTA mentioned in the ballot paper/ EVMs, so those people come to the pooling booth and decided not to vote any of the candidate then they able to exercise of such right- not to vote while maintaining the right of secrecy.[viii]

The definition of Representatives of the State was stated under the Kuldip Nayarand others v. U.O.I and others. Those who are elected to represent the State by the electoral college, which for present purposes means the elected Members of the Legislative Assembly of the State, are necessarily the representatives‖ of the State. Secrecy of voting is the exception of such provision which is mention under it and the secrecy in voting will initiates the corruption and to prevent such corruption there shall be the transparency which removes it because transparency eliminate the evil with the object of free and fair election.

As referred the PUCL's case the option of NOTA which will also applicable in the Rajya Sabha election and such option must be written in the ballot paper at the end name of the last candidates and shall be printed in such language as pursuance in Rule-22(1) and Rule-30(1) r/w Rule-70 of the Conduct of Election Rules,1961.

In pursuance of such direction it asserted the process of exercising the option of NOTA in the election of Rajya Sabha and also in the Legislative Councils which as follows:

1. Marking against NOTA shall be by way of writing figures 1, 2, 3, etc. as in the case of marking preference for candidates, i.e in international form of Indian numerals or in the Roman form or in any Indian language;
    
2. If preference 1‘ is marked against NOTA, it shall be treated as a case of not voting for any of the candidates and such ballot shall be treated as invalid, even if 1‘ is also marked against any other candidate in addition to being marked against NOTA;
    
3. If 1st preference is validly marked against one of the candidates, and 2nd preference is marked against NOTA, such ballot paper shall be treated as valid for the candidate for whom 1st preference has been marked, provided there is no other ground to invalidate it, under Rule 73(2). In such case, at the stage of examining 2nd preference, the ballot paper shall be treated as exhausted as the 2nd preference is marked against NOTA. Similarly, if 1st and 2nd preferences are validly marked against a candidate each and 3rd preference is marked against NOTA, the ballot shall be valid for the first count and for the purposes of the 2nd preference, but, at the stage of examining the 3rd preference, if such stage comes, the ballot shall be treated as exhausted. These instructions shall apply for subsequent preferences also.
    
4. If 1st preference and subsequent preferences, if any, are validly marked against the candidates and cross/tick is marked against NOTA, the ballot paper shall not be rejected as invalid only on this ground, and the preferences marked against the candidates shall be considered and counted accordingly. However, the general provisions of the rules and the Commission's instructions regarding marks that may identify the voter shall apply in the case of the mark against NOTA option, and if the RO considers that the mark put therein reasonably points towards identification of the voter within the meaning of rule 73(2)(d), that would render the ballot liable to rejection on that ground.

The instructions to the voters for casting vote in Rajya Sabha, it has been stated that:

1. Out of the candidates shown in the Ballot Paper, if you do not want to elect any candidate, then in the column -Show your Order of Preference, against -NOTA and figure of-1 is required to be shown. In the column against -NOTA, instead of figure -1, alternative preference numbers 2, 3, 4 etc. can also be shown.
2. This figure of -1 can be put against the name of only one candidate or against -NOTA.

Such citizens who are entitle of a voter to come to the pooling booth and decide to vote any of the candidate or exercise the right not to vote as per the universal adult suffrage conferred on the citizens of India by our Constitution.

we would say that where the law on the subject is silent, Article-324 is a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election, and in this view it also assumes the role of an adviser. But the power to make law under Article-327 vests in Parliament, which is supreme and so, not bound by such advice.[ix] It can be said without a speck of doubt that the decision taken by the Election Commission as regards the introduction of NOTA in the election of the members to the Council of States also runs counter to what has been stated hereinabove. NOTA will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder. [x]

Criticism
Such circular which was introducedby the Election Commission of India are not in accordance with the procedure envisaged under the Representative of People Act and Rules of 1951. In the case of Ram Jawaya Kapur v. State of Punjab and Bishambhar Dayal Chandra Mohan andors v. State of U.P and others stated that it is beyond the power of the Election Commission who introduce the NOTA in the elections of the Members to the Council of States.

Article-80 doesn't regard with this and stipulate which is provided under 10th Schedule of our Constitution. The option of NOTA is stand with the disqualification of a member on the ground of defection. NOTA will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder and such order of NOTA is also inconsistent with the Article-324. The option of NOTA also encourage the corruption in our society.

Conclusion
Why we research on any of the topic because we convey something in our society with our view and with our own interpretation. The option of NOTA effects in the two way in our Society or country i.e. negative and positive. So as we look the positive effect- it would increase the participation and also prevent the rights of the elector which guaranteed under section- 79A of the Representative of the People Act,1951 and the negative effect- it consider as a waste of vote and also encourages the corruption in our society.

Basically the option of NOTA not take away the rights of the elector but it grant the kind of stage where such citizens exercise their right – not to vote by expressing their will or expression with the view to reject the candidates because they think that such candidate is not able to represent the state and also it is the existing system that dissatisfied voter ordinarily can't turn up for voting but it turn provides a chance with have the option of NOTA. With a view to this the Election Commission had took the largest interest of promoting the democracy and introduce the option of NOTA.

End-Notes:

1. en.m.wikipedia.org (last visited on 11th Aug,2020)
2. P. Rathna Swamy Election Law Publication of Lexis Nexis
3. 2018 SCC 1041
4. (2013) 10 SCC 1
5. ibid
6. Supra 3
7. (1993) 4 SCC 234
8. Supra 3
9. Inidiakanoon.org (last visited on 12th Aug,2020)
10. Supra 3

Written By: Neha Singhal - Student: BBA LLB, Institute: Centre for legal studies (GIBS)