What is Rule 49-O?

Rule 49-O is a rule in The Conduct of Elections Rules, 1961[1] of India, which governs elections in the country. It describes the procedure to be followed when a valid voter decides not to cast his vote, and decides to record this fact. The apparent purpose of this section is to prevent the election fraud or the misuse of votes. At present, in an election, a winner will be declared irrespective of the number of 'non-votes'. However, a note of every 'non-vote' will be made with the Election Officer, and the total number of non-voters will, presumably, be available under the Right to Information Act.

How can it be misused if you don’t vote?

Now given the present scenario, a voter is physically signed into the station but votes privately, by pressing a button on the EVM (Electronic Voting Machine). What stops him from NOT pressing that button in the event that he doesn’t wish to vote for the contesting candidature? This STILL isn't where the problem lies. Now you have X number of people signed in, and X-1 votes. Nobody can trace who didn’t vote; hence that vote can be misused. It is for this reason that Rule 49-O exists. Via this rule, a voter is given an opportunity to sign a separate form (Form 17-A), and submit it to the presiding officer, thereby putting this decision on record. This clears up the haze when votes are being tallied.

Present Implications of Rule 49-O

Since the ballot paper / Electronic voting machine (EVM) contains only the list of candidates, a voter cannot record his vote under Section 49-O directly. He must inform the presiding officer at the election booth. This violates the secrecy of the ballot. However, with paper ballot a different method is used to "waste" ones vote, which is stamping on multiple candidates. In fact this was the standard method of giving null votes without violating secrecy before the advent of the EVM.

At present, in an election, a winner will be declared irrespective of the number of 'non-votes'. However, a note of every 'non-vote' will be made with the Election Officer, and the total number of non-voters will, presumably, be available under the Right to Information Act.

Disqualification hoax

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 life time. "It has been brought to the notice of the Commission that various misleading reports are being circulated though the Press, the electronic media, emails and through SMS to the effect that if the number of voters who choose to exercise their option not to vote for any contesting candidate as provided in Rule 49-O of Conduct of Elections Rules, 1961, exceeds the margin of votes secured by the winning candidate over the runner up, this will invalidate the election and a repoll will be held. It is clarified that under Rule 49-O, the voter has an option not to vote at the election after he has been identified at the polling station and his name has been registered in Registers of voters (Form -17A). The Presiding Officer shall thereupon make a note to that effect against the name of that voter and obtain his signature (thumb impression in the case of an illiterate). In such case, the voters who exercise the option of not voting at the election under Rule 49-O would only be deemed to have abstained themselves from voting and under the law, the candidate who secures highest number of valid votes polled, irrespective of his winning margin, is declared elected."

Even if a 'None of the Above' button were to be added to the EVM to protect secret ballot, thus, an overwhelming number of negative votes would not alter the election result. Explains Additional Solicitor General Amarendra Sharan: "There is no provision for barring the candidates or a re-poll based on this. One can't be given a right to no vote as voting itself is a statutory right and not a fundamental right."

So now what?

There have been several PIL(s) requesting the constitution be amended to allow the elector to reject all fielded candidates and if these specific electors are in majority give them a re-election for that particular constituency. The Election commission itself has requested the central government to amend the article and add “none of the above” in the ballot paper thus protecting the elector’s identity and also sending a message to the political fraternity that enough is enough. The central government as expected has refused to amend article.

The only way, the elector can make these politicians (that the electors deem unfit for office) understand that they represent the people and not their own vested interests is by going out on voting day and exercising Article 49-0 in mass numbers. By not voting at all, you are giving these politicians a sense of security, that they are actually elected by us. It is time we send a message in bulk that we need a change in leadership and a change in direction for our esteemed nation.

Shivoo Koteshwar, shivoo@yahoo.com