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Respected Sir,

I am to write this mail, in response to the Supreme Courts Judgment as to Modification in the electoral process by including "None of The Above {NTA}" norm in the EVM.

It is a right of every citizen of India to vote. To what extent is this correct. Puzzled.. read on.

A right to vote is not pushing a button. It is not merely getting up, going to the booth, having a dye mark on the finger, and then reaching your hand to push button on EVM. There is thought process involved, "Why am I doing this? Who is the Candidate? Which party? What has he done so far for me, society? Why should I cast vote for A/B/C - candidate/party. It is a deliberation prior to the actual act of voting. It is selection of the candidate/party by each individual voter as his candidate/party. Therefore from a non-voters perspective the act of electing and casting a vote is conscious decision and not one affected by apathetic/ignorance/negligence. There is however no certainty that the actual voters are conscious and not apathetic /ignorant/negligent, and that they have infact put in sufficient deliberation before casting vote. To that extent it may be argued that it is better not to vote than to vote a wrong candidate/party. But this is wrong perception. Because even if non-voter don't participate the voters who have no deliberation would still participate and the probability of being self-burdened by a representative not of choice of non-voters is far high. This reasoning is further flawed as even by assuming that by non participation non-voters register their protest, they run the risk of leaving it to the actual-voters to choose the "non-voters representative". Further there is big risk of relegating by negation to exercise right to vote to actual-voters.

One may take a view that a [R]ight to do a thing, includes Right [n]ot to do that thing. But there is flaw in this statement because "Right" per se, is exercised/not-exercised irrespective of and to the exclusion of the other. The Right to vote is not exclusion of others, but is actually a right to choose a representative.  In that sense this right is the right of "right-option" only. Prior to the Supreme Court verdict, the right of "right-option" was meaningless, as there was no option to register reluctance/protest other than by abstinence. But now with the advent of the new NTA-EVM the right is not a meaningless right anymore. Thus now the right of "right-option" is available, as also right to none of the options is also available.

This, makes the participation in electoral process a Duty cast on each voter.

Now the question is - in electoral process - whether there is any corresponding duty cast on the voter?

Going by Professor Honfeld theory of Right having corresponding Duty, there has to be corresponding Duty upon a voter in the electoral law. And then if there is a Duty there should be a Penalty for not doing a Duty. Because a duty which cannot be sought to be enforced or least damage sought to be recovered [as a measure to seek enforcement of right/duty - like a vaccine] for the exercise of duty/right, and especially after making available the resources to the voter, the machinery, at the cost of the coffer which come from each citizens taxes, to exercise his right/duty of option; there has to be attached some penalty.

Actually let us see whether there is a Right in Rem or in Personam. There cannot be any argument that this is mixed. Therefore the right is to be exercised, as to individual perception of good to the voter by the candidate/party, AND individual perception of good to the society by the candidate/party. Here it would be worth noting that mere voters benefit is not the purpose of the election {though it is one of it}. The society as a large {or least} has to be centre of thought of each voter and whether he would appoint such candidate/party as his agent/employee. Therefore undisputedly there is a societal element included in the decision of voting. Thus seen, it is not the personal proprietary right but element of social duty involved in the nature of the democratic setup of "governance of the people by the people". It is the people who decides who governs [t]hem and so do the non-voters.

Lastly, those who claim to abstain from electoral process cannot claim to have right to vote. And as a fundamental process of the social engineering, and those who have left away the multitude, cannot seek protection from the social strength of the multitude. Further the Constitutional duty cast on each individual includes duty to vote.

Therefore as a vaccine as also to regulate the non-voters it is necessary to provide for certain disqualifications as penalty. This is Social and National need and the Legislature lest executive order can provide for the same.

Taking clue from the Australian law on referendum, and certain statutes in USA [though the repugnancy is not applicable in the present NTA-EVM] in the nature of disqualifications as penalty viz.

(a) Non-voters should not receive any government exemptions/subsidies on gas, food, kerosene etc. which can be easily mapped from UID.

(b) Non-voters should be disqualified from voting in further election {tariff/tenure/count may be provided for}

(c) A non-voter may be defined reasonably primary aim being to persuade him to participate in electoral process. Proviso/exemptions may be provided for, such as disabled very old citizen, other genuine cause /reason etc.

(d) The NTA-EVM be simultaneously advertised or the Party/Candidate be directed to advertise on their banners and posters in their election campaign. Appropriate security of performance of this provision and penalty on failure be provided for.

(e) Non-voter be additionally to the above disqualification be penalized additionally by charging fine of Rs.1/- payable by DD in the favour of ECoI.


This is just a concept and your departments and researchers have sufficient tools to bring a good/best form to it.

The above would strengthen the Indian Base and make my/our country a robust democracy.

Sandeep Kapatkar



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Category Constitutional Law, Other Articles by - Sandeep Kapatkar