I was ignorant of Section 49-O until I saw an email the other day. It asked me to further spread the ‘noble’ message on the aspect of a non-voting option given to the electorate who are ignorant of the same through further emails. Since I am not much into the email chains I thought why not I convey my opinion in a blog like this which can draw wider attention and consequently healthy brainstorming debates may enuse. A reflection on the following sections of our electoral laws made me arrive at some conclusion and doubts that I thought would interest the voters.

THE CONDUCT OF ELECTIONS RULES, 1961:

Section 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.

After reading this no politician in his or her right mind will ever announce to the constituents that there is an opportunity for the voters to defeat him or her, and also make the candidates possibly unfit for a re-poll. Then I think the election commission should keep the citizens informed about the prominence and true intention of the section 49-O by way of   TV announcements, posters etc. The above is crucial as certain negative legislations are godsend; they work as enablers and save democracy in many constituencies, strangely and pleasantly.

In fact, the section gives a different dimension to the Indian voter while exercising the franchise. Here the voter need not sit at home if there are no eligible candidates in the constituency according his or her better discretion to choose from. Merely shunning the polling booth is of no avail to anyone. On the contrary it may create a chance for malpractices like rigging to take place. Now, the voter with the new knowledge of the section can visit the polling booth and record his or her disinterest (if he or she so chooses so), in any of the contesting candidates. By registering such refusal the voter is in fact expressing his emphatic choice democratically to make our democracy more vibrant in the absence of certain safety valves like plebiscite and recall systems. The resolute voter can do the above after the indelible ink is applied in the polling booth on his or her finger.

I happen to read some say that Section 49-O also ensures ineligibility of the candidates   for re-poll if such ‘49-O’ kind of votes are more than the votes secured by highest number of votes polled candidate. But I have not found any supporting material in the electoral rules or elsewhere to substantiate that view.

Some others view that by keeping this Section 49-O in the elections rules government is unwittingly breaching the ‘secrecy’ provision in Representation of Peoples Act, 1954.

For that a reading of the section is useful.

 Section 94 of the Representation of Peoples Act, 1954:

Secrecy of voting not to be infringed-- No witness or other person shall be required to state for whom he has voted at an election:

1[Provided that this section shall not apply to such witness or other person where he has voted by open ballot.].

I think the provision of secrecy will not be affected because the undecided voter is separately endorsing in the presence of election staff that he is not interested in any of the candidates as coming under Section 49-O, and that is he or she is willing for an open ballot. So I find no clash between these two sections from different enactments.

Lastly I have my own doubts about how the wishes of the above Section 49-O voters could be recorded on the Electronic Voting machines (EVMs). Is it not the right time Government came out with a new button on the voting machine that says ‘none of the above’ that makes it also a Electronic Non-Voting Machine (‘ENVM’)?