Rule 49-O was a rule in The Conduct of Elections Rules, 1961 of India, which governs elections in the country. It described the procedure to be followed when a valid voter decides not to cast his vote, and decides to record this fact. The rule was declared by the Supreme Court in September 2013 to be incompatible with the constitution and the Election Commission of India announced that the option under this rule would not be availabe any more. The apparent purpose of this section was to maintain a proper record in order to prevent the election fraud or the misuse of votes.
Text of Rule 49-O
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.
Implications of Rule 49-O
Since the ballot paper or electronic voting machine (EVM) showed only the list of candidates, a voter could not record his vote under Section 49-O directly, but had to inform the presiding officer at the election booth. This violated the secrecy of the ballot. However, with paper ballot one could “waste” one’s vote by stamping on multiple candidates; this was the standard method of giving null votes without violating secrecy before the advent of the EVM.
Proposals by the Election Commission of India
In 2004 the then Chief Election Commissioner of India, T.S. Krishnamurthy, submitted a number of proposed electoral reforms to the then Prime Minister, including the following:
NEGATIVE / NEUTRAL VOTING
The Commission has received proposals from a very large number of individuals and organizations that there should be a provision enabling a voter to reject all the candidates in the constituency if he does not find them suitable. In the voting using the conventional ballot paper and ballot boxes, an elector can drop the ballot paper without marking his vote against any of the candidates, if he chooses so. However, in the voting using the Electronic Voting Machines, such a facility is not available to the voter. Although, Rule 49 O of the Conduct of Election Rules, 1961 provides that an elector may refuse to vote after he has been identified and necessary entries made in the Register of Electors and the marked copy of the electoral roll, the secrecy of voting is not protected here in as much as the polling officials and the polling agents in the polling station get to know about the decision of such a voter.
The Commission recommends that the law should be amended to specifically provide for negative / neutral voting. For this purpose, Rules 22 and 49B of the Conduct of Election Rules, 1961 may be suitably amended adding a provision that in the ballot paper and the particulars on the ballot unit, in the column relating to names of candidates, after the entry relating to the last candidate, there shall be a column None of the above, to enable a voter to reject all the candidates, if he chooses so. Such a proposal was earlier made by the Commission in 2001 (vide letter dated 10.12.2001).
A hoax has been circulating which claims that if the ’49-O’ votes more than those of the winning candidate, then that poll will be canceled and will have to be re-polled. Furthermore, it claims that the contestants will be banned and they cannot contest the re-polling for their lifetime. This is an incorrect interpretation and was clarified by the Election Commission.
Invalidation of rule 49-O
In its judgement of 27 September, 2013, The Supreme Court directed that the Election Commission should 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. 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. On 11 October 2013, the Election Commission released a notification declaring that the None of the above option would be provided on voting machines and the option under rule 49-O would not be available any longer.
Voters will, now for the first time, be able to exercise the “None of the Above” (NOTA) option for candidates in the Lok Sabha polls, the Election Commission said. Chief Election Commissioner VS Sampath said the entire election will be held using electronic voting machines (EVMs), and that the NOTA option will also be provided.
“The 2014 Lok Sabha polls shall be held with EVMs,” he said, adding that appropriate instructions will be issued regarding the NOTA facility. The option was first made available in the Novermber-December assembly polls in five states last year. The Lok Sabha elections will involve a staggering 814 million voters, an increase of some 100 million from 2009, and a sharp rise from the 176 million in the first parliamentary polls of 1952.