Ashwani Kumar Singh*
Introduction
The allocation of seats in the House of the People to the States and the division of each State into territorial constituencies (hereinafter referred to as the ‘delimitation exercise’) is mandated under Article 82 of the Constitution of India. However, the Indian Government, in 1976, put a freeze on the delimitation exercise till 2001, extended to 2026 by the NDA government.. The delayed 2021-census is likely to begin in 2025, and be completed in time for the delimitation exercise to be carried out in 2026.
While delimitation is essential to truly adhere to the principles of ‘one person, one vote’, political reality cannot be ignored either. In the 2019 Lok Sabha (LS) election, though BJP received 303 seats – well over the 272-mark required for majority, but had only a 37.6 % share of the total votes. In 2014, BJP won 282 seats with only a 31% vote share. BJP could effectively have formed a majority government without support from other parties in 2014, with less than one-third approval rating, and in 2019 with a little over one-third approval rating [the fact that it chose a coalition structure is a different matter].
Vaishnav and Hintson note that reapportionment of parliamentary seats would have increased BJP’s tally by 17 seats (with the same vote share) in the 2014 elections. That would have taken BJP’s 2014 figure to 299 seats [54.86 % of the total Lok Sabha seats] with just 31 % vote share. Thus, less than one-third vote share could theoretically give a political party more than half of the LS seats. It warrants a fundamental question—When can the procedure followed by an electoral system to determine the “Democratic Will” of the people be called fair? Khaitan [here and here] suggests that India should discard the first-past-the-post (FPTP) voting system and adopt a ranked-choice voting (RCV) system because it would give ‘greater democratic legitimacy’ to winning candidates. In the RCV system, electors rank candidates in order of their preference, generally their top 2 or 3 preferences. If no candidate has more than fifty percent of the votes, then the candidate with the lowest number of first-preference votes is eliminated. Their votes are distributed to other candidates based on the second preference of the electors who voted for the eliminated candidate. The process is repeated until a candidate receives fifty percent of the votes polled or there are only two candidates remaining.
While there are many questions that need to be addressed before the move to shift to an RCV system, my focus for this blog post is on NOTA (None of the Above), and the right not to vote. NOTA could further complicate an RCV system. If NOTA is given as an option in an RCV system, electors could choose NOTA either as their primary/first preference or non-primary preference. It is the latter that could potentially create hurdles.
I argue that while the RCV system is an improvement over the FPTP, if adopted, it should respond to the use of NOTA (None of the Above) and the right not to vote. This is important because, as shown in Part B, there are potential conflicts in simultaneously following the RCV system and the right not to vote as exercised in India. In Part B and Part C, I explain how the presence/absence of NOTA in an RCV system could impact election results. In Part C, I use data from the 2024 LS elections of five constituencies (Akola, Kandhamal, Jajpur, Amritsar, and Fatehpur) to show how the RCV system (with and without NOTA) would have made a difference to election results in those selected constituencies. Part C also shows how NOTA could make a difference in the RCV system. Part D shows why, despite the concerns raised in the post, discarding NOTA is not the ideal solution. In the concluding part, I suggest how the aforementioned concerns may be addressed.
Potential Conflicts Between RCV System And NOTA
If an RCV system requires electors to mark their first three preferences, they may choose a real candidate as their first preference and NOTA as their second and third preferences. There could be another provision that if an elector mentions only their primary preference and does not mark their non-primary preference, it shall be assumed that the elector chose NOTA as their non-primary preference (hereinafter referred to as Presumed-NOTA, see Case 2 in the table 1). NOTA and Presumed-NOTA create a third possibility for a confused elector, that is, the option of voting as if they were voting in an FPTP system. The elector then does not have to rank their preferences but rather choose just one candidate. It goes against the purpose of RCV and brings us closer to what we already have, a defective system. To be clear, at this stage, I am not proposing that NOTA should necessarily be discarded in the RCV system, or that electors should be required to put a minimum or a fixed number of human preferences. How to deploy NOTA, if at all, requires an extensive discussion. However, it should not be an easy way out from what could be a complex voting process for electors.
While the RCV system has many benefits over the FPTP – for example: greater legitimacy; incentive for parties to improve engagement to win support for non-primary votes; among other things; it certainly would not be easy to implement. Apart from secondary concerns like time-consumption and cost, which are outweighed by the positive impact and long-term benefits of RCV, there are more pressing challenges. Improper implementation could lead to lower turnouts or higher rates of invalidity of votes.
The first step towards the adoption of an RCV system should be to educate electors, since a lower turnout or higher rate of invalidity of votes would cancel out the positive impact of [i.e., higher approval rate] the RCV. Other than obvious information like ‘how to cast a valid vote’, they should know why and how it matters. This becomes more important if we allow a presumed-NOTA (as discussed above) because a confused elector could simply not use the added features of the RCV system and mention only their first/primary preference.
Another downside of adopting NOTA in RCV is that political parties, that are more likely to benefit from a polarized electorate, would encourage electors to not mention their non-primary preferences. For instance, a political party ‘P’ could adopt a two-fold approach. For its supporters (those who rank a P-candidate as their primary preference), P would encourage them either not to mention their non-primary preferences or to choose NOTA as their non-primary preference. For its non-supporters (those who rank a non-P candidate as their primary preference), P would encourage them to consider a P candidate as their non-primary preference. Irrespective of whether other parties follow this strategy, P has already made a dent in the system because of NOTA (or the right not to vote). They have relied on NOTA to cut down the non-primary votes of opposition parties. Some may argue that if all parties employ similar tactics, which they eventually will, the aggregate effect would be nil. However, that is not entirely accurate. For a polarised country like India, such a scenario would again bring us closer to the FPTP system. The fewer the number of electors opting for NOTA, the greater the benefit of moving to the RCV system. An RCV system essentially records the non-primary preferences of electors. Non-primary preferences are then used, as discussed earlier, when no candidate receives more than fifty percent of the votes polled. In the event of vote manipulation by parties, encouraging their supporters to use the NOTA option to disadvantage their opponents, many electors would not record their non-primary preferences. This number will be higher in a highly polarised country like India. This effectively means that there will be very few non-primary preferences that can be utilised for computing election results, mitigating the unique impacts of the RCV demonstrated in Columns 3 and 4 in Tables 2-6. Therefore, the usage of NOTA can be used to mitigate the unique utility of an RCV system.
This is not to say that electors will or should never opt for NOTA in an RCV system. The argument is that they have the right to make an informed decision without any undue influence and be aware of tactics that can undercut the positive impacts of the system.
Analysis Of 2024 LS Elections
In 2024 Lok Sabha elections, in 182 constituencies, the winning candidate had a victory margin less than the votes cast in favour of the third positioned candidate. I will show with the help of data from five such constituencies (Akola, Kandhamal, Jajpur, Amritsar, and Fatehpur) how an RCV system might have changed the elections results. In these constituencies excluding Amritsar, the top 3 candidates together received at least 95 percent of votes polled, and second ranked and third ranked candidates together received more than fifty percent of votes polled. In Amritsar, the top 4 candidates together received 92.8 percent of votes polled; and second ranked, third ranked and fourth ranked candidates together received more than fifty percent of votes polled. This means that until the third ranked candidate is eliminated in the counting (for Amrtisar, the fourth ranked candidate), the first ranked candidate cannot secure more than fifty percent vote in these constituencies and therefore, cannot win.
For that reason, I will limit myself to the top 3-4 candidates and focus on the elimination of the third/fourth ranked candidate. I will assess whether the absence/presence of NOTA in an RCV system would have any impact on those results. I will redistribute the votes received by the third or fourth positioned candidates between other candidates based on certain assumptions like overlapping ideologies, ideological differences, past relationships between parties etc. For instance, electors who choose BJP are more likely to opt for AAP as their second preference over INC. Further, in Columns 3 and 4 in Tables 2-6, I have shown that fifty percent of electors who voted for the third/fourth candidate opted for NOTA as their second preference because, as discussed above, a majority of electors would not record their non-primary preferences in a polarized country like India (see Part B of the post).
For Table 2: Electors who opted for the VBA candidate were more likely to choose the INC candidate as their second preference over the BJP candidate because of ideological similarities. But at the same time, if they had an option to put NOTA as their second preference and were unaware of its consequences, many would opt for NOTA as their second preference.
For Tables 3 and 4: Electors who opted for the INC candidate were more likely to choose the BJD candidate as their second preference over the BJP candidate because of INC’s ideological differences with BJP.
For Table 5: Electors who choose the SAD candidate were more likely to choose the BJP candidate over the AAP and INC candidates because of the previous relationship between SAD and BJP and their overlapping ideologies.
For Table 6: Electors who opted for the BSP candidate were more likely to choose the BJP candidate as their second preference over the SP candidate because of BSP’s ideological differences with SP.
Therefore, Tables 2 to 6 show that the inclusion of NOTA could partially nullify the positive impact of the RCV system. In Table 6, SP and BJP candidates were ranked first and second respectively in the current FPTP system. If approximately 70 percent of BSP electors had marked the BJP candidate as their second preference (3:7 distribution between SP and BJP), BJP would have won in Fatehpur. However, if the electors had the option to mark NOTA as their second preference, and 50 percent of BSP electors had chosen NOTA, and the remaining 50 percent of BSP electors had chosen SP and BJP in the ratio of 3:7, BJP would have lost the election. Similarly, Tables (2 to 6) show how NOTA could negate the positive impact of RCV system.
Should We Discard NOTA in RCV Systems?
It may seem that the best way forward is to discard NOTA (in RCV) and require electors to mandatorily mention a minimum or exact number of preferences, failing which their votes would be deemed invalid (e.g., Case 2 in table 1 would be deemed as an invalid vote). Firstly, there is the concern of the constitutional validity of such a move, which arises particularly because of the decision of the Supreme Court in PUCL 2004, which recognised the ‘right not to vote’, wherein it mandated the inclusion of the NOTA option in ballots, to allow for the exercise of the ‘right not to vote’. Another issue is that the electors could: a) refuse to vote, or b) mark non-primary preferences randomly or without sufficient information.
Could NOTA then be restricted to only a primary preference and not a non-primary preference? In other words, if an elector wants to choose NOTA as their primary/first preference and not mention their non-primary preference(s), they may do so. However, if they want to choose NOTA as their non-primary preference after having chosen a real candidate as their primary/first preference, they will not be allowed to do so (or if they do, their votes would be invalid). This would be an unfair proposition as it would violate the right to vote. Say, an elector wants to give their primary preference to a candidate but does not consider other candidates worthy of their non-primary preferences. A restricted exercise of NOTA would force the elector to mention their non-primary preferences, failing which their vote would be deemed invalid. It restricts the elector’s right to vote for their preferred candidate.
Concluding Remarks
The unrestricted retention of NOTA should come with a clear warning that political parties would not directly or indirectly (through other means) misuse it to dilute the positive impacts of the RCV system. The objective should be to limit the use of NOTA to instances when electors, without any undue influence, would like to opt for NOTA as their primary or non-primary preference. Further, electors should know how non-primary preferences (second, third, and so on) could change the results. Educating electors would require a massive mass education campaign, probably unprecedented in post-1947 India. If India discusses, which it should, the possibility of adopting an RCV system, it should consider how NOTA and the right not to vote would feature in the new system.
*Ashwani Kumar Singh is an Assistant Professor of Law at Vinayaka Mission's Law School, VMRF (DU). He has a keen interest in comparative constitutional law and theory, constitution-making, and democratic theory. He holds a Master’s degree in LLM Public Law from University College London (UCL) and a Bachelor’s degree in BALLB(Hons) from Gujarat National Law University, Gandhinagar (GNLU).
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