In 2014, the Supreme Court (SC) directed the government to change electoral laws to give voters the option to reject all candidates if they do not like any of them. The NOTA (‘none of the above’) option on ballot papers enables voters to officially register a form of protest over the political parties’ candidate-selection process.
The SC ruling stated that as voters were exercising only ‘yes votes’, it was important to allow them to cast ‘no votes’ as well. A joint bench of Justices Kalyan Shrestha and Prakash Wosti argued that the right to reject was an integral part of freedom of speech and expression guaranteed by the constitution as well as by international treaties and conventions. But political parties are yet to change electoral laws to this effect, largely out of fear of their candidates being rejected.
‘White vote’, ‘blank vote’, and ‘against all’ are other nomenclatures for NOTA adopted in different countries like India, Ukraine, Spain, Bangladesh, Pakistan, and in some American states. When voters choose NOTA option in their ballot papers, they deem none of the available candidates worthy of elected positions.
It has been eight years since Nepal’s apex court order, but major parties continue to demur. Following the order, the Election Commission, in 2016, had incorporated this provision in the drafts of election-related laws. But parties opted to remove it after parliamentary deliberations in 2017.
Ayodhi Prasad Yadav, the chief election commissioner at the time, says he had tried to convince parties to incorporate the provision, but to no avail. He had visited India to study the procedures of NOTA option in elections and concluded that it could be easily implemented in Nepal as well.
“Honoring the Supreme Court verdict and with a view that it would strengthen the democratic rights of Nepali people, the Election Commission had pushed the NOTA option, but major parties were not willing,” says Yadav. “Such a provision cannot be implemented without agreement among the political parties.”
Save for a few fringe parties, none of the big parties has seriously entertained the notion of NOTA option for elections.
According to constitutional lawyer Radheshyam Adhikari, after debating the issue in parliament, the parties concluded that they should wait for some time considering the low level of voter education.
“In our context, electoral practices are yet to take root at the ground-level. We are still disseminating voter education on how to correctly select candidates,” says Adhikari. “In this situation, the implementation of NOTA could further confuse voters.”
Adhikari, nevertheless, is hopeful that after some periodic elections, higher voter education-level will allow for disapproval votes.
Bibeksheel Sajha Party, led by Rabindra Mishra, is among the small number of parties that demand NOTA voting option. The party has even incorporated the option in its statute.
“As per the Supreme Court’s ruling and successful practice of many democratic countries, we should not delay the implementation of NOTA option, which is a voter-right,” says Prakash Chandra Pariyar, a secretariat member of Bibeksheel Sajha Party.
Election experts say the adoption of the NOTA option would bring a systemic change to the current electoral process, which is becoming increasingly costly.
Under the current system, there is a culture of political parties picking candidates who can spend the most to win elections. As a result, competent candidates seldom get the opportunity to represent their constituencies.
Neel Kantha Uprety, former chief election commissioner, says people always want to vote for competent contenders.
“With the NOTA voting opting, parties will be compelled to pick their candidates more judiciously. It will also minimize the influence of money in candidate-selection,” he says. “If a large number of voters select NOTA, parties will have to acknowledge that there was a problem with the candidate in question, which in turn will lead to an improvement in the quality of candidates in the field.”
Pariyar of the Bibeksheel agrees with Uprety. He says the principle of lesser-evil dominates Nepal’s current election system.
“Voters are compelled to pick a candidate who is equally if not worse than other contestants in the fray. With the NOTA option, they will get to tell the political parties that they want better candidates,” says Pariyar.
Normally, NOTA votes do not get a majority, although that cannot be ruled out. If the majority does vote for NOTA, there would be a re-election. But in a democracy even the voices of minorities are respected.
In 2013, the Indian Supreme Court mandated that both the federal and provincial governments offer a NOTA option for voters. It was subsequently implemented by the Indian government.
In the 2014 Indian general elections, the NOTA option received approximately 1 percent of all cast votes. A little over 1 percent of the Indian voters chose NOTA in the 2019 Lok Sabha elections. While 2.08 percent of the voters in Assam and Bihar chose NOTA, the ratio was just 0.65 percent in Sikkim.
The new voting right in India was gained after a long struggle. In 2004, People’s Union for Civil Liberties, a human rights group, had filed a legal petition asking for measures allowing voters to express their views without any pressure.
A year after India’s top court granted such a right, Nepal’s top court followed suit.
“The voters should not be influenced to vote for a certain candidate and there should also be no imposition of certain ideologies on them,” Nepal’s SC said in its ruling.
It also cited Article 25 of International Covenant on Civil and Political Rights 1966 that calls for universal and equal suffrage, and guarantee of free expression.
Adhikari, the constitutional lawyer, says many people of voting age do not exercise their franchise as they do not like the candidates fielded by the political parties.
“If the right to reject is implemented in elections, such voters will get a chance to express their disapproval of candidates. They should get to express their disillusionment with politics through the electoral process,” he says.