Synopsis: The paper will talk about Rule 49-O of the Conduct of Elections Rules 1961, stating its advantages and disadvantages. The paper will also discuss why the Supreme court held Rule 49 O of the Conduct of Elections Rules to be invalid.
What is Rule 49-O?
The Conduct of Elections Rules, 1961 governs the elections in India. Section 49-O of the Conduct of Elections Rules, 1961 talks Elector deciding not to vote. The procedure to be followed when a valid voter decides not to cast his vote, and decides to record this fact is mentioned under Rule 49-O.
Rule 49-O says that “if an electordecides not to record his vote,after his electoral roll number has been duly entered in the register of voters in Form 17A and he has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, 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.”
What is the need for rule 49-O?
Right to vote must also include the vote of disapproval/rejection. The voter should have an alternative to register a vote of disapproval/rejection if they think none of the contesting candidates deserve to be voted for.
Advantage of rule 49-O for the voter
An argument in favour of provision of neutral voting is that it helps prevention of election fraud or the misuse of votesas someone else will not be able to impersonate and vote in place of him in favour of any candidate. It provides a freedom to the voter to whether or not to vote similar to Russia where voters are allowed to vote "against all" candidates.
Disadvantage of rule 49-O for the elector?
The fact that the voter has to inform the presiding officer violates the secrecy of the ballot and also puts the voter in danger of being victimized by some candidates or political parties.
Judgement by the Supreme Court
The Supreme Court in its judgement on 27 September, 2013, directed the Election Commission to make necessary provision in the ballot papers/EVMs for “None of the Above (NOTA)” option so that the electors who do not wish to vote for any of the candidates can exercise their right not to vote for any candidate without violation of the secrecy of their decision.
Section 128 of the Representation of the People Act talks about Maintenance of secrecy of voting and Article 19(1)(a) of the Constitution talks about to freedom of speech and expression. The Supreme Court ruled out that Rules 41 (2), 41(3) and 49-O of the Conduct of Elections Rules, 1961, were held to be ultra vires Section 128 of the Representation of the People Act, 1951 and Article 19(1)(a) of the Constitution. The Election Commission on 11 October 2013, released a notification declaring that the NOTA option would be provided on voting machines and the option under rule 49-O would not be available any longer.