With the terrorist attacks in Mumbai, a lot of people are expressing their disgust agains the politics in print and web media. As an outcome, people are discussing a certain “Article 49-O” in the Indian Constitution that apparently gives the right not to vote. Most of these people do not have a legal background and with the elections coming around the corner ask their readers to exercise this article and not vote. This post attempts to bring to light certain myths of 49-O and in what manner it can be used.

The Constitutional right to vote guaranteed under Article 326 is the codification of the ‘common law right to vote’ in the famous torts case of Ashby v. White. While under the Constitution itself there is an open question as to whether the right to vote includes the right ‘not to vote’, this idea has found some mention in the Election Commission’s Code of Conduct for Elections Rules, 1969 which under Article 49-O states;

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.

Thus, to exercise this right, one must have his name on the electoral roles of the constituency and has to put down his signature or thumb impression. Then, via a certain form it would be registered that the voter has chosen not to vote.

Now one myth that I would like the readers to note, this is not a provision in the Constitution but a part of the Election Commission’s Rules. So when the Magsaysay award winner Arvind Kejriwal commented that the the time is ripe to let people exercise the right not to vote, somebody needed to tell him to look into the statute books and laws 47 years back.The article in the Hindustan times also states the following;

The EC did try twice — in 2001 and, again, in 2004. But, expectedly, perhaps, the government slept over the proposal. The government needs to make a simple amendment in the Representation of the People Act, 1951 to include a “none of the above” column at the end of the ballot paper.

Well, what the Election Commission in this case did was to merely put this right in a different statute.This in no way affected the already existing Section 49-O. Perhaps its existence was the reason these proposals were rejected.

More so, movements asking people to rise and not to vote for any politician because they cannot effectively handle the menace of terrorism are quite worthless and do note serve any purpose. It must be understood that we are a democracy and all leaders sitting in parliament are chosen by ourselves. That they are not competent is an argument showing that there is a dearth of good leaders in our country and not voting is not going to serve that purpose. If any, a movement should be diverted towards educating to voters in making rational choices while choosing a candidate.