Article 49-O?

Since its election time in India, I have decided in my first post, to discuss about a certain “Article 49-O of the Indian Constitution”. A few months ago, I received the following E-Mail:

A must read for all responsible Indian citizens. Section 49!VO of the
Constitution

Did you know that there is a system in our constitution, as per the1969
act, in section "49!VO" that a person can go to the polling
booth,confirm his identity, get his finger marked and convey the
presiding election officer that he doesn't want to vote anyone!

Yes such a feature is available, but obviously these seemingly notorious
leaders have never disclosed it. This is called "49!VO".

Why should you go and say "I VOTE NOBODY"... because, in a ward, if a
candidate wins, say by 123 votes, and that particular ward has received
"49!VO" votes more than 123, then that polling will be canceled and will
have to be re!Vpolled. Not only that, but the candidature of the
contestants will be removed and they cannot contest the re!Vpolling,
since people had already expressed their decision on them. This would
bring fear into parties and hence look for genuine candidates for their
parties for election. This would change the way; of our whole political
system... it is seemingly surprising why the election commission has not
revealed such a feature to the public....

Please spread this news to as many as you know...Seems to be a wonderful
weapon against corrupt parties in India... show your power, expressing
your desire not to vote for anybody, is even more powerful than vote.

Being a Law student and having studied Constitutional Law as a subject for almost a year I was surprised never to have come across this particular provision of the Constitution. Although, I initially assumed the mail to be a hoax as most E-Mails of a similar nature usually are, I decided to conduct my own independent research into the existence of ‘Article 49-O’. As it turned out, the above E-Mail was seriously (although not completely) flawed in its assertions and therefore utterly misleading. However, Indian law does provide for a provision which allows a voter to cast a ‘non-vote’. It is explained in detail below:

Facts

The provision which permits a voter to abstain from exercising his franchise in favour of any one candidate and consequently register a ‘non-vote’ is not Article 49-O as claimed by the mail but in fact Rule 49-O of the Conduct of Elections Rules, 1961. The Rule in its actuality reads as under-

49-O. 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, decided 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.


Although the above rule needs no further explanation, it is imperative to note that this particular legislation does not make any stipulation as to the cancellation of a candidate’s election followed by re-polling with a completely new set of candidates in the event of the number of non-votes exceeding the number of actual votes cast. Moreover, its implementation has become increasingly difficult in recent times with the introduction of EVMs (Electronic Voting Machines) throughout India, as a voter who wishes to cast a non-vote would have to personally inform the Presiding Officer of the Polling Booth of his intentions (as EVMs do not carry any provision for casting a non-vote) resulting in an unavoidable violation of the secrecy of ballot.

There have been several attempts by various NGOs as well as Government Bodies to reaffirm Rule 49-O by pressing for suitable amendments in the relevant legal provisions as well as the procedure for conducting elections, most noteworthy of which was made by the Election Commission in the year 2004 (Draft Proposal for Electoral Reforms submitted to Dr. Manmohan Singh, Hon’ble Prime Minister of India). However, no concrete steps have so far been taken by the Legislature or the Government in this regard.

My Take

Article 225 and 226 of the Constitution of India guarantee to every citizen of India the right to exercise his/her franchise based on universal adult suffrage. The right to vote may also be inferred from Article 19(1)(a) of the Constitution which bestows on a Citizen the freedom of speech and expression (voting being a form of personal expression). As such, a citizen eligible to vote has a claim to exercise the right in a manner which suits him/her best, including the right to cast a non-vote and the same is merely explicitly recognized by Rule 49-O. In my opinion, the Rule, in its present form, is substantially impotent and therefore redundant as the number of non-votes shall not be taken into account while ascertaining the final tally of votes which will ultimately determine the result of that particular election. It is necessary to add teeth to this Rule in order to make it more meaningful, by at least giving the number of non-votes due consideration and in the event of the non-votes exceeding the number of normal votes cast, by canceling the specific election and subsequently rescheduling it with additional candidates who are eligible to contest. These changes, by adding an element of referendum to the whole process, would eventually streamline elections and would also further tip the balance of political power in favour of the common man. Although, banning of candidates who are considered eligible and have contested in elections which have registered a majority of non-votes, should not be considered, as that would be contrary to the spirit of democracy.

However, the lack of legislative interest in the implementation of Rule 49-O, even in its present form, seems apparent by the authorities' unwillingness to designate a special non-vote button on the EVMs until date, despite being fully aware that this small modification will go a long way in preserving the secrecy of ballot. For that reason, suffice to say that amendments which shall make Rule 49-O as effective as it actually needs to be, would not be made anytime in the near foreseeable future.