On 5th May 2013, I went with my family to the polling booth to cast our votes for the Karnataka State Assembly elections. I was shocked to see the process being followed for “No Vote (Rule 49-O)”. One thing that instantly caught my attention was the change in the tone of the presiding officer. He would become aggressive and arrogant if anybody expressed the desire to opt for 49-O. But what shocked me the most was the manual entries being made for all such cases in the register (Form 17A), that too in red ink. So they were making these cases glaringly visible in violation of the secrecy of ballots, or the right to privacy.

Rule 49-O of Conduct of Elections Rules, 1961

Elector deciding not to vote – “If an elector, after his electoral roll number has been duly entered in the register of voters in Form 17A, and has put his signature or thumb impression thereon as required under sub-rule(1) of rule 49L, decides not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.”

Contradictions Within the Law

Ironically, the Rule 49-M prescribes detailed guidelines for the maintenance of secrecy of voting by electors within the polling station, along with the voting procedures (click here to see the rules).

In the era of paper ballot (before EVMs), stamping on multiple candidates was the standard method of giving null votes without violating the secrecy. Surprisingly, with reforms and the advent of Electronic Voting Machines (EVMs), the important aspect of secrecy has been grossly neglected.

Disqualification Hoax

A hoax has been circulating which claims that if the ’49-O’ votes more than those of the winning candidate, then that poll will be canceled and will have to be re-polled. Furthermore, it claims that the contestants will be banned and they cannot contest the re-polling for their lifetime. This is false and has no basis whatsoever. See the Press Note from The Election Commission of India dated 5-Dec-2008.

Courts Ignoring the Demands

What is even more disappointing is that the courts as well as the Law Ministry have not taken any concrete steps so far to address this issue. See the news article on the rejection of PIL demanding ‘no vote’ button in EVMs by the Gujarat High Court (source: The Times of India, 12-Dec-2012).

The petition filed by the human rights organisation, People’s Union for Civil Liberties (PUCL), has asked for a “None Of The Above” (NOTA) button on electronic voting machines (EVMs) which will enable secrecy of the ballot when voters opt to not vote for any contesting candidate. The petition, filed in 2004, was referred to a larger bench in 2009 and has been awaiting its next hearing since.

Past Assurances from the Law Ministry

As per the news article in The Times of India on 4th June, 2011, the then law minister Veerappa Moily had said, “We are working on making right to privacy a fundamental right. It is likely to be tabled in the monsoon session of Parliament. However, it’s difficult to commit the timeframe.” The right to privacy would include the right to confidentiality of communication, confidentiality of private or family life, protection of his honour and good name, protection from search, detention or exposure of lawful communication between individuals, privacy from surveillance, confidentiality of banking, financial, medical and legal information, protection from identity theft of various kinds, protection of use of a person’s photographs, fingerprints, DNA samples and other samples taken at police stations and other places and protection of data relating to individual. Corporate lobbyist Niira Radia’s phone tapping row was one of the triggers behind this move.

Conclusion

The secrecy of ballot paper is a must to ensure free and fair election. I hope that the Honorable Supreme Court of India will suitably address this long-pending issue soon, so that in the next parliamentary elections in 2014, the citizens will be able to vote under 49-O through the EVM itself.

Useful links

• Voters reject all candidates in Goa
• EC wants ‘None of the Above’ button on EVMs
• Make space for 49-O in the Electronic Voting Machines
• Privacy and The Constitution
• The Conduct of Elections Rules, 1961
• Facebook campaign