Rule 49

An Elector deciding not to vote – Open to the elements By Syed Farman Ahmad Naqvi, Advocate, Allahabad High Court Rule 49-O of THE CONDUCT OF ELECTIONS RULES, 1961 relates to the issue that if an Elector deciding not to vote against any of the candidate then what is the option available to him. The rule says, ”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 subrule (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.” The exercise of voting right by an Indian is a fundamental right to express their opinion, as guaranteed under 19(1) (a) of the Constitution of India. Under Article 326 of the Constitution of India, it is provided that election to the house of people and to the legislative assembly of every state shall be on the basis of adult suffrage, which means that every citizen of India of more than 18 years of age has a right to express his opinion in an election. Consider a case where as per the above provision a person goes to the polling booth, confirms his identity, get his finger marked, and convey to the presiding officer that he/she doesn’t want to vote for anyone, but obviously, this attribute of democracy was not much publicized by our adored leaders & so called champions of Democracy. People are now thinking in the direction that for example if in a ward or constituency, a candidate wins, say by 500 votes, and that particular ward has received more than 500, "49-O" votes, then that polling will be cancelled and will have to be re-polled. Not only that, but the candidature of the contestants will be removed and they cannot contest the re-polling, since people have 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 surprising why the election commission has not revealed such a feature to the public. Besides hypothesis the ground reality is that although right to vote is exercised through secret ballot and no one can know that which of the candidate was voted by an elector, unless the voter himself voluntarily discloses it after voting. Secret ballot means a type of voting in which each person's vote is kept secret, but the amassed votes of various groups are revealed publicly. The secret ballot is a voting method in which a voter's choices are confidential. The key aim is to ensure the voter records a sincere choice by

2 forestalling attempts to influence the voter by intimidation or bribery. The system is one means of achieving the goal of political privacy. Secret ballots are suitable for many different voting systems. The most basic form may be blank pieces of paper, upon which each voter writes only their choice. Without revealing their vote to anyone, the voters place the ballots into a sealed box, which is emptied later for counting. One of the most common forms in the modern world provides for preprinted ballot papers with the name of the candidates or questions and respective checkboxes. Provisions are made at the polling place for the voter to record their preferences in secret. The ballots are specifically designed to eliminate bias and to prevent anyone from linking voter to ballot. When basic tenet of election i.e. ‘secret ballot’ is applied upon the right of ‘49 O’ the theory crumbles as house of cards, because once an elector proposes to exercise this right he had to make” 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.” Meaning thereby that his vote of Dissent is now an open secret and hence it is apparently not in consonance with Secret Ballot rule – which is the basic tenet of election. Another aspect is to be considered that now almost in all levels of elections in India the electronic voting machines are being used. EVMs (Electronic Voting Machines) manufactured in 1989-90 were used on experimental basis for the first time in 16 Assembly Constituencies in the States of Madhya Pradesh (5), Rajasthan (5) and NCT of Delhi (6) at the General Elections to the respective Legislative Assemblies held in November, 1998. An Electronic Voting Machine consists of two Units – a Control Unit and a Balloting Unit – joined by a five-meter cable. The Control Unit remains with the Presiding Officer or a Polling Officer and the Balloting Unit is placed inside the voting compartment. Instead of issuing a ballot paper, the Polling Officer in-charge of the Control Unit will press the Ballot Button. This will enable the voter to cast his vote by pressing the blue button on the Balloting Unit against the candidate and symbol of his choice. EVMs can cater to a maximum of 64 candidates. There is provision for 16 candidates in a Balloting Unit. If the total number of candidates exceeds 16, a second Balloting Unit can be linked parallel to the first Balloting Unit. Similarly, if the total number of candidates exceeds 32, a third Balloting Unit can be attached and if the total number of candidates exceeds 48, a fourth Balloting Unit can be attached to cater to a maximum of 64 candidates. (Source http://www.eci.gov.in/faq/evm.asp ). It is evident from the above fact that there is no provision for ’49 O’ in an EVM, hence person exercising this right does not have equal status than a general voter who casts his positive vote, and this anomaly is to be tackled in right earnest also by making provision in the EVMs.