India’s elections won’t be the same again thanks to an advocate who has diligently heralded nation’s most emphatic electoral reforms in the form of Supreme Court’s recognition of a negative vote as a constitutional right. Sanjay Parikh, a noted lawyer of Supreme Court and humble and soft spoken legal pundit, is the face behind recent NOTA (none of the above) order of the SC. A noted practitioner of democratic values and famous lawyer activist Parikh, though, accepts that to make NOTA more effective, law will require further change to incorporate the right of rejection but asserts that it will definitely force political parties to field clean candidates.
In an interview to Aprajita Sharma, he explained the NOTA judgment and next goal of electoral reforms.
Please shed some light on the section 79(d) of the Representation of People’s Act and rules 49(O), 41(2) and 41(3) of Conduct of Election Rules in the context of NOTA judgment?
Under Section 79(d) of the Representation of People Act, a person’s right to vote and right not to vote has been put on the same pedestal. If a person casts his vote, the secrecy of the vote is maintained but if he decides not to cast his vote, secrecy is breached. Rule 49(O), however, requires the voter to sign on Form-17A, if he chooses not to vote. Rules 41(2) and 41(3) are also such which violate the secrecy of those who decide not to cast vote. As the right to vote and the right not to vote are accorded the same significance in Section 79(D), it is important to provide secrecy both to the person casting his vote and the one not casting his vote. Therefore, Supreme Court reasoned that rules 49(O), 41(2) and 41(3) are violative of Art 14 as well as the Freedom of Expression guaranteed under Article 19 (1) (a) of the Constitution. It also held that the said Rules are also ultra vires Section 79(d) of the RPA.
Should elections be held again if majority rejects all the candidates?
Of course it should, as democracy is run by majority but this would require Parliament to amend the Representation of People Act. In case NOTA votes fall in majority in forthcoming elections, people can move the Court to demand for re-election. Election Commission can also step under Article 324 of the Constitution which vests the superintendence, direction and control of elections in the EC.
As NOTA will not affect the electoral results, how else would it bring change in the electoral system?
Though a candidate having minority votes as against majority NOTA votes, will not be disqualified automatically but its compulsions will have deterrent effect on the political parties not to project dishonest candidates. In the long run, if there are a large number of constituencies which vote for NOTA, then there will be a move to amend the law. If this provision was there since beginning, things would have been different today. However, essence of democracy is that people should speak out, they should raise their voice and make their decisions known to the political parties: that they want good-governance which ensures people’s welfare.
Is providing Right to Reject to Indian citizens is your next target?
Yes. That would be second stage of our efforts. Following this judgment, an amendment to the Representation of the People Act stating that more than 50 per cent voting for NOTA will lead to re-election in a constituency will be appropriate. This law will act as a deterrent to political parties fielding tainted candidates. This will clean democratic politics to a great extent.
Do you think Right to Recall should be given to Indian citizens?
Though Right to Recall ought to be given but whether it should be provided at this juncture is the question. Suppose this right is implemented then powerful and criminal political leaders might intimidate vulnerable, illiterate and poor people to recall the incumbent leader and thus seek for re-election. Unless people would not know the strength of their votes essential for a healthy democracy, unless they are not competent enough to genuinely use it, Right to Recall would not serve its purpose.
Do you think judicial activism is demeaning the parliamentary supremacy?
Certainly not! If Judiciary ever transcends its boundary, Legislature can reverse the law under the constitutional mechanism. Policies must be such which ensure the welfare of the people. If Executive doesn’t do so, Judiciary will have to intervene. If tasks like cleaning of sewage or construction of roads are not performed and situation continues to remain same, people would have no other option but to move court. At present people feel that only Judiciary is discharging effectively its role.