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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 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.”
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

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 pre-
printed 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,
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.