Of what value is NOTA?

Modes of protest have been changing across the globe. Long-term protests have been replaced by short-term and explosive ones, and organised struggles by spontaneous and issue-based movements. To add to this is the provision of NOTA (None of the Above) in India as part of the electoral process, that allows voters to protest by refusing to give their vote to any of the candidates seeking election. What type of a protest is NOTA? What purpose does it serve?

NOTA was used for the first time in the 2013 assembly elections in five states - Chhattisgarh, Mizoram, Rajasthan, Delhi and Madhya Pradesh - and later in the 2014 General Elections. It was introduced into the electoral process following the 2013 Supreme Court directive in PUCL versus Union of India). The Supreme Court reasoned that the NOTA option would allow voters to express their discontent with the political parties and the candidates they put up and thus help cleanse the political system.

According to a bench headed by then Chief Justice of India P Sathasivam, "Negative voting will lead to a systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject a candidate is a fundamental right of speech and expression under the Constitution".  Further, NOTA has been extended by the Supreme Court to the elections to the Rajya Sabha, refusing the Congress Party's plea to stay it.

NOTA has no electoral value in our system. Even if the maximum votes are polled in favour of NOTA the candidate with the largest number of votes, which could theoretically even be just one vote, will still be declared elected.

The Supreme Court is of the opinion that despite NOTA not having an electoral value, it is still a very significant tool for citizens to express their discontent which will in turn, it hopes, cleanse the system. It is also seen as a tool for the marginalised groups to highlight their issues that would not otherwise find space in the mainstream electoral discourse.

For instance, women activists in Kerala campaigned for the use of NOTA if no women were fielded as candidates. Similarly, youth activists in Tamil Nadu campaigned for the use of NOTA as a protest against growing corruption. More recently, in the context of elections in Gujarat, parents threatened to vote NOTA as a protest against growing fee hikes in schools and colleges.

This rather unusual nature of protest that NOTA allows for raises interesting questions for us to understand the changes in Indian democracy, the way it is being perceived and practiced. NOTA presents a paradox for Indian democracy. It signifies participation in the electoral process but also growing discontent with all that it entails, political parties, politicians and their politics.

This paradox between participation and discontent is important to understand in some detail to know how NOTA is being used and perceived by voters and by political representatives. What do the voters seem to trust in their willingness to vote, and what are they unhappy about in opting for NOTA? Who do they think will correct the maladies that they wish to highlight by choosing NOTA?

NOTA is a provision for protest within the limits of liberal constitutionalism, unlike the other modes of protest, such as the boycott of elections that has been used mostly in conflict zones such as Kashmir, the Northeast or by the militant Left-wing parties such as the Maoists in Central India. For instance, in the last elections in Jammu and Kashmir, the maximum number of voters who opted for NOTA was in the Banihal constituency (2,405 voters), followed by 1,641 voters in Bandipura, Kashmir.

While the lowest use of NOTA was in Nubra assembly segment of Leh district. Further, the number of voters using NOTA option was higher in the assembly polls than in the parliamentary elections of 2014. While 31,550 voters used NOTA in the Lok Sabha polls, 49,000 voters used it in the assembly elections. During the parliamentary elections, Udhampur-Doda constituency in Kashmir witnessed the highest number of voters who used NOTA, followed by Anantnag constituency, while Ladakh witnessed the lowest use of NOTA.

Empowering NOTA

What do we make of this pattern? Can NOTA become an effective alternative to boycott of polls in Kashmir and other conflict-zones? Does providing the option of NOTA therefore strengthen the interest of the voters in Kashmir in the electoral process? Or does it provide too weak an option, given the insurmountable problems that people face in conflict zones or elsewhere?

Does it not make more sense to empower NOTA by cancelling elections in constituencies where NOTA polls the highest votes, to be followed up by other deliberative processes to highlight the corrective measures to be put in place and to make the representative process more robust and effective?

If such amendments to the electoral process are not to be made, then Indian democracy will be more susceptible to the phenomenon of strongmen that we are currently witnessing, where voters are compelled to depend on individual personality cults to deliver where institutions are failing them. There will be more calls for 'direct democracy', undermining the representative process and relying more on bureaucratic interventions of unelected and self-appointed representatives, which could also include judicial overreach.

Instead of expanding the efficacy of such provisions as NOTA, what we are witnessing is strategies such as the Gujarat Local Authorities Act (Amendment) 2009, where voting for the local bodies was sought to be made compulsory at pain of penalty for not doing so. Thankfully, the Gujarat High Court stayed the legislation, arguing that "the right to vote itself provides the right to refrain from voting". Instead of a deliberative process, such provisions seek to criminalise discontent and protest. And without protest, as we have witnessed, liberal democracies barely are responsive and functional in our part of the world.

(The writer is Associate Professor, Centre for Political Studies, JNU)