This article came in "South Asia Politics" in June 2007
Effectuating the Negative Voting: SC missed a chance
Pradeep Baisakh
Pradeep Baisakh
It is high time that the criminals, anti-social and inefficient elements be flushed out of the political system paving the way for the people of clean image, having sensitivity to people and to cause of the society at large tobe in the saddle. This cleanliness driev can be ignited by adopting the provision of negative voting.
By leaving the decision to the Government to accept and implement the recommendation of the Election Commission of giving the voters to reject the candidates in the elections through the ballot, the Supreme Court of India seems to have missed a chance to effectuate the concept of negative voting in our electoral system. Hearing the PIL filed by Ashok Agarwal, a resident of Noida, the bench of apex court comprising Justice B. N. Aggarwal and Justice P.P. Naolekar suggested the petitioner to wait till the government takes a decision on such electoral reforms.
Though in a democracy like India, it is always wished that major electoral reforms be done only after a well informed public debate and after a consensus in the political class, the Courts nevertheless have a role to play in important aspects of such reforms as they have done before. To cite one such example, in the year 2002-03, the Apex Court, despite the united opposition by the law makers made it mandatory for the aspiring candidates to furnish information regarding their criminal antecedents, assets and liabilities and their educational qualification during the filing of nomination.
Rule 49 O of the Election Rules-1961 provides that the elector may refuse to vote after he has been identified and necessary formalities are adhered upon. However this provision violates the secrecy of voting. The Election Commission (EC) therefore recommended way back in 2001 that the law should be suitably amended and rule 22 and 49 B of the Election Rules-1961 be modified to incorporate the choice of ‘none of the above’. The then and the successive governments have however shown lukewarm response to this recommendation.
It has also been debated whether the EC on its own is empowered to make such provisions particularly when the Parliament is not doing anything in this direction. In two judgments namely Mohinder Singh Gill case of 1978 and the A.C. Jose case of 1984 the Supreme Court held that the EC can. The EC however seems reluctant to push forward with such an issue having wider implication on its own without the active nod of the Parliament. Since the political class of the country has developed a tendency of sleeping over the proposals that would ultimately affect their interest (For example, proposals of constituting Lokpal, providing reservation to women in Legislatures etc) , it is expected that the Apex court would rise to the occasion to assert itself , in the wider public interest, to implement such proposals. However, the SC refrained this time for no convincing reasons.
“The will of people shall be the basis of the authority of the government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage……..” Universal Declaration of Human Rights.
The quote above stresses that the nature of election should be such that the accurate will of the people is reflected in the process, otherwise the legitimacy of the government can not be guaranteed and the democracy will be at peril. The effectiveness of the electoral process determines the extent of control of people over the government and consequently the sensitivity of the elected representative toward the people; because the governments will listen seriously to people only when there is a realistic possibility that they will be turned out of the office if they do not. The current electoral system in India unfortunately is full of loopholes and requires radical reforms. It has thoroughly failed in preventing the criminals and anti-social elements to enter in to law making institutions, let alone ushering the entry of efficient people into it which it is expected to do. Money and muscle power rule in Indian election; religion in overt and covert means is used as demagogy to influence voters; caste based politics has become the rule, egalitarianism is the exception. The existence of nexus between criminals and politicians was found out in the Vohra committee report, which was preferred by the government not to make public. There are many other findings those show how badly our political system has been infested by anti-socials elements and the people with vested interests. The dirtiest turn that our system has taken leaves the people at large disillusioned and helpless as they are incapable to redress it.
Though in a democracy like India, it is always wished that major electoral reforms be done only after a well informed public debate and after a consensus in the political class, the Courts nevertheless have a role to play in important aspects of such reforms as they have done before. To cite one such example, in the year 2002-03, the Apex Court, despite the united opposition by the law makers made it mandatory for the aspiring candidates to furnish information regarding their criminal antecedents, assets and liabilities and their educational qualification during the filing of nomination.
Rule 49 O of the Election Rules-1961 provides that the elector may refuse to vote after he has been identified and necessary formalities are adhered upon. However this provision violates the secrecy of voting. The Election Commission (EC) therefore recommended way back in 2001 that the law should be suitably amended and rule 22 and 49 B of the Election Rules-1961 be modified to incorporate the choice of ‘none of the above’. The then and the successive governments have however shown lukewarm response to this recommendation.
It has also been debated whether the EC on its own is empowered to make such provisions particularly when the Parliament is not doing anything in this direction. In two judgments namely Mohinder Singh Gill case of 1978 and the A.C. Jose case of 1984 the Supreme Court held that the EC can. The EC however seems reluctant to push forward with such an issue having wider implication on its own without the active nod of the Parliament. Since the political class of the country has developed a tendency of sleeping over the proposals that would ultimately affect their interest (For example, proposals of constituting Lokpal, providing reservation to women in Legislatures etc) , it is expected that the Apex court would rise to the occasion to assert itself , in the wider public interest, to implement such proposals. However, the SC refrained this time for no convincing reasons.
“The will of people shall be the basis of the authority of the government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage……..” Universal Declaration of Human Rights.
The quote above stresses that the nature of election should be such that the accurate will of the people is reflected in the process, otherwise the legitimacy of the government can not be guaranteed and the democracy will be at peril. The effectiveness of the electoral process determines the extent of control of people over the government and consequently the sensitivity of the elected representative toward the people; because the governments will listen seriously to people only when there is a realistic possibility that they will be turned out of the office if they do not. The current electoral system in India unfortunately is full of loopholes and requires radical reforms. It has thoroughly failed in preventing the criminals and anti-social elements to enter in to law making institutions, let alone ushering the entry of efficient people into it which it is expected to do. Money and muscle power rule in Indian election; religion in overt and covert means is used as demagogy to influence voters; caste based politics has become the rule, egalitarianism is the exception. The existence of nexus between criminals and politicians was found out in the Vohra committee report, which was preferred by the government not to make public. There are many other findings those show how badly our political system has been infested by anti-socials elements and the people with vested interests. The dirtiest turn that our system has taken leaves the people at large disillusioned and helpless as they are incapable to redress it.
The present pattern of voting is more a process of elimination than selection. When the voter is faced with a situation where he finds none in the list to be suitable enough to represent him he votes for the one who is the least evil. In other words his vote for anybody is in realty not for him but against others. In other words, it is not that he likes the candidate, but he dislikes others more than he dislikes him i.e. he is the least disliked candidate. For example in 1972 US presidential election many told that they are not for Nixon, but they are for sure not for Mc Govern. So a vote against is wrongly being equated with a vote for. This pattern of voting in a way prevents the voter to express his free will or his real intent. He is put in a quandary where he is damned if he votes, damned if he does not. This process can not be claimed to be democratic as the will expressed is not a free will but a forced will of a voter, and the outcome therefore can not be termed to have the backing of the consent of people. And the kind of government that emerges out as a result of this voting pattern can very well be visualized. Therefore the present voting pattern is incapable of giving a legitimate government. More importantly in this process the voter gets dejected as he has no scope for expressing the resentment and disapproval against all the candidates in the electoral fray, nor can he influence the process; this leads to the growth of disaffection and gradual loss of faith toward the democratic system. This is one of the primary reasons of lower voter participation in different places. The educated and the sensitive citizens are the most disillusioned lot who are able to understand how the system is being hijacked by the unethical and anti-democratic persons and groups and how brutally the democracy is being murdered with impunity
Therefore what is needed is to give the option of negative voting to the electorates. There are two concepts relating to it. In the first form, the voter is given two options, one is ‘for’ and the other is ‘against’. He can vote for the candidate he finds most suitable and against he considers highly undeserving. During the counting of votes all the ‘for’ and ‘against’ votes are added separately and then added to each other to get the sum total of it. The candidate getting the highest number of ‘for’ votes (or least number of ‘against’ votes as the case may be) is declared elected. This suggestion is however radical and not found many takers in India. In the second type of negative voting, which is also called neutral voting, simply one more option indicating ‘none of the above’ is added to the ballot paper carrying the symbols of different parties/candidates. Here the voter will have the option of rejecting all the candidates if he finds all the candidates to be unfit to represent him. This is comparatively a moderate suggestion which the Election Commission of India also recommends.
Both the above two suggestions will increase the voter participation as it will bring back the disaffected citizens back to the process. In the first suggestion the voter not only can express his resentment but also influence the outcome directly. In the second one however the voter can only express his disapproval to and resentment against all the candidates but can not possibly influence the outcome directly. The first case therefore has a larger implication and can change the system radically. Suppose all the candidates get only ‘against’ votes after the final tally, then? Obviously one who gets less number of it would be declared winner. But the impact it would bring on the political parties vis-à-vis their role in candidate selection will be profound. The parties will be very cautious onwards to ensure that the criteria to choose the candidate are quality and acceptability of the candidates by the public, not on basis of any extraneous factors. This suggestion therefore has the potential to revolutionise the system. The second idea is also potent with ushering concrete changes in the electoral system. Suppose a good percentage of people exercise the option of ‘none of the above’, then it would spark the debate nationwide on the issue and will bring moral impact on the political parties to redefine their criteria for candidate selection. According to The report of the Intelligence Bureau on Criminalisation of Politics has found ‘all political parties prefer candidates who have greater chances of success without bothering to know about their criminal records. If a candidate can spend money for the party or is capable of winning elections through money or muscle power, he is most welcome. That is why the anti-social elements succeed in reaching state assemblies and Parliament’. It may also bring pressure on the government to amend the law relating to the prevention of criminals into politics. The current provision of barring only the convicted persons has thoroughly failed to achieve its objective as the following facts suggest. According to the figures provided by EC for the present Lok Sabha, as many as 100 MPs have criminal background; BJP alone has 26 out of its 138(nearly 20%), NDA in total has 37 such MPs, Congress has 15 out of 145 MPs (nearly 10%), RJD has 40% and BSP has 1/3rd of their total MPs are from such background. Similar reports of EC for the 1998 Lok Sabha election shows that the number of candidates with criminal records who contested elections was around 1500 out of a total of 13952. They were under prosecution for crimes like murder, dacoity, rape, theft and extortion. According to the findings of IB, in between august 2001 to July 2002 criminal cases were registered against as many as 15 MPs and 658 MLAs belonging to different states. So there is an urgent necessity of changing the law to bar the persons who are charge-sheeted in a criminal case to file his/her nomination paper. Admittedly some innocents will suffer in the modified criteria as charge-sheeting does not imply that he is guilty, but this is necessary for the larger interest of the country. The alternative to this is that our MPs and MLAs represent their constituencies in the jails not in the legislatures! Moreover, charge sheet is filed only after the person is found prima facie guilty, not out of vacuum.
It is high time that the criminals, anti-social and inefficient elements be flushed out of the political system paving the way for the people of clean image, having sensitivity to the people and to the cause of the society at large to be in the saddle. This cleanliness drive can be ignited by adopting the provision of negative voting. It will gradually bring back the faith of people in the democratic process and make it more participative and inclusive. This is the only way to make the democracy work in its true sense.
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Mr Baisakh is a Freelance journalist
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