Nepal's democratic journey has reached a new turning point after the Gen-G movements of 23 and 24 Bhadra. On the eve of the House of Representatives elections to be held on 21 Falgun, the political circle is gradually heating up. On the one hand, voter dissatisfaction is deepening, on the other hand, there is also curiosity about how new political parties will emerge and how old political parties will transform themselves.

In this context, it is high time to once again start a debate on the option of ‘None of the Above’ (NOTA) i.e. ‘I do not support any of the candidates above’.

‘NOTA’ is being practiced in many countries of the world. It was also discussed in previous elections held in Nepal. But it could not be implemented. But this time, it is necessary to look at this issue more seriously. It is inevitable to seriously consider every means of expressing the will of the voters in the elections. What message does ‘NOTA’ give in democracy? What is its justification for Nepal? This article has attempted to clarify this issue.

‘ What is NOTA’? 

If voters are dissatisfied with any candidate, they can show their dissatisfaction legally by choosing ‘NOTA’ on the ballot paper. This is not an ‘illegal vote’ but a conscious rejection. This is the best legal way for a conscious citizen to express dissatisfaction with the option they have received within the democratic framework. This implies active participation rather than the silent refusal to stay home on election day due to dissatisfaction. It is a powerful means of free expression for citizens and voters.

Economist Amartya Sen has said in his book ‘The Idea of ​​Justice’, ‘Democracy is not just the right to speak or vote, but also the right to refuse.’ Although the Constitution of Nepal has given citizens the right to vote and freedom of expression, in practice voters do not have the legal option to refuse. This has made democracy incomplete.

The Constitution of Nepal has also ensured citizens the right to express themselves and vote. But in practice, voters can only choose from the available candidates, there is no option to refuse. In this way, the current voting system cannot be called perfect. If a voter is forced to vote even if they consider all the candidates unreliable, it is a prohibition of democratic expression.

‘ NOTA’ sends a good message in democracy? 

Looking at the use made by countries around the world, ‘NOTA’ strengthens democracy in three ways. First, it protects the sovereignty of the voters. If voters are dissatisfied with all candidates, then expressing that dissatisfaction is the essence of democracy. ‘NOTA’ gives citizens the right to register their dissatisfaction as a valid vote.

Second, it informs political parties that it is time for them to improve. When the ‘NOTA’ vote is higher than others in an area, parties are forced to improve their candidate selection, conduct, and public relations. This is a clear warning to voters – ‘We are dissatisfied.’

Third, it teaches positive protest. Voters are not forced to choose the ‘less bad’ candidate, but can express their dissatisfaction according to their conscience. This increases voter participation, reduces invalid votes, and restores citizens’ trust in elections. And, overall, strengthens democracy.

However, practicing ‘NOTA’ can also come with some risks. First, no matter how many votes ‘NOTA’ gets, the candidate who gets the most votes wins, which makes it ineffective. Second, the high NOTA vote in reserved areas can sometimes be a sign of caste bias. This distorts the original purpose of NOTA. Third, mandatory NOTA can instill in voters the habit of rejecting all candidates without serious evaluation, which reduces the importance of voting.

Why the right to reject?

First, freedom of expression is our fundamental right, but we tend to associate this right only with the freedom to speak or write. In fact, voting is also a powerful means of expression. If voters do not have faith in the available candidates, then they should be ensured the right to express that dissatisfaction. This right can be exercised through NOTA. It frees voters from fear, pressure or a state of choicelessness and gives them a way to legitimately express their dissatisfaction, which is a form of free expression.

Second, in most elections, candidates do not seem credible to all the people as expected. Some have controversial pasts, some have lost public trust. In such a situation, voters now have no choice, they are forced to vote even for candidates they do not like. But if the ‘NOTA’ option is available, voters can clearly send a message that they are dissatisfied. This forces not only voters but also political parties to think about why voters rejected candidates and motivates parties to improve their candidates and policies.

Third, when a significant number of voters choose ‘NOTA’ in an election, it is not just a protest, but a sign of improvement. If only a few reject it, it may be a personal opinion, but when a large section of the population says ‘all of this is unacceptable’, it is a message that there is a serious problem in the country’s political system. Such a result forces both political parties and the Election Commission to self-assess. It contributes to taking steps towards improving the criteria for candidate selection, restoring public trust and increasing transparency.

On 1 December 2070, the Supreme Court issued a historic order stating that ‘voters should have the right to reject’. The court considered ‘NOTA’ as an integral part of the right to vote and directed the government and the Election Commission to include the option ‘No to anyone’ on the ballot paper. However, this order has not been implemented till date. Despite the court's reminder in 2076, there has been no progress due to lack of political will. 'NOTA' was not implemented in the 2074 and 2079 elections held after the 2070 order. 

International practice and message for Nepal

The concept of 'NOTA' is not new. Many countries around the world have adopted it in various forms. In international practice, this provision was first used in the US state of Nevada in 1976. It is being practiced there continuously. If we look at America, the direct use of 'NOTA' is not like in India. But there is the concept of 'Right to Recall' as a form of dissatisfaction with the elected representatives of the people. 

Voters can also submit blank ballots if they do not want to elect any candidate, which can be considered a kind of 'NOTA'. This practice has raised the awareness of the citizens that 'I am dissatisfied, but I will speak within the system'. The American system has given voters more power than 'NOTA' by giving them the right to recall representatives within their term. In the US, such votes have never reversed the outcome, but they have pushed parties towards reform and accountability.

In India, the ‘NOTA’ button has been placed on electronic devices after a Supreme Court ruling in 2013. ‘NOTA’ in India was established after a long legal battle. This right was a historic decision following a writ petition by the ‘People’s Union for Civil Liberties’, which recognized ‘NOTA’ as part of the right to privacy.

‘NOTA’ was first used in India in the 2014 Lok Sabha elections, where about 6 million voters chose this option. They voted for the voice of discontent and opposition, not for any party. Although this was only 1.8 percent of the total electorate. But it was a powerful message from 6 million discontented voters, given the size of India. Therefore, it created a deep awareness among parties about the importance of ethics, transparency and public trust in the selection of candidates. Although the results did not change much, the parties started prioritizing public trust and a clean image in the selection of candidates. The Election Commission of India has since defined NOTA as a legitimate democratic right of dissent.

But so far, NOTA in India has not had the legal power to overturn election results. Even if it gets the most votes, the candidate in second place is declared the winner. However, this option has repeatedly spread political messages and awareness of reform. In the 2018 Chhattisgarh assembly elections, NOTA came in third place with more than 14,000 votes in one area. This sent a message that dissatisfaction was deep among the people. Similarly, in Russia, there was an 'Against All' option until 2006, which was later removed. Similarly, the blank ballot paper system is in practice in Spain and the 'No Vote' system is in practice in Thailand. Such a clear system is not found in most countries of the world.

Apart from this, countries like Ukraine, Spain, Colombia, Bangladesh and others also have options like NOTA. Countries like Sweden and Finland have a 'Recall' system, which takes the spirit of NOTA to the level of implementation.

Nepal's potential 

Nepal can also implement the concept of 'NOTA' in the upcoming elections. This increases political accountability and prevents political parties from arbitrarily selecting candidates. Similarly, 'NOTA' can empower voters. 'NOTA' can be a means of attracting voters, especially the young and educated class, who are distancing themselves from the political process. Similarly, its use can provide the right direction to politics. If the 'NOTA' vote continues to increase, parties can avoid giving tickets to people who are corrupt, linked to crime and have a history of abuse.

However, there are some challenges regarding the implementation of 'NOTA'. First, there is no provision regarding 'NOTA' in the current Election Act of Nepal. The Act must be amended to implement it. For this, sufficient time and a political consensus are required. If a political consensus is reached, it can also come through an ordinance in the absence of a parliament. 

Second, there is a lack of clarity of the results. What will happen if 'NOTA' gets more votes in Nepal, like in India? The important question is: In such a situation, will there be a re-election in that area or will the second-placed candidate win? Unless a clear answer is given to this, the effectiveness of 'NOTA' will be limited.

Third, 'NOTA' has the potential to be misused. Some powerful elements can also use 'NOTA' as a weapon to defeat their opponents. Fourth, the main obstacle in trying to implement the 'NOTA' system may come from traditional political parties. They may see this method as a threat to their political influence. Therefore, a solid political consensus is required between all parties to implement it.

What does the law say?

Since Article 17 of the Constitution of Nepal also enshrines the right to dissent within the freedom of expression and political rights, the Constitution does not prohibit the use of 'NOTA'. Since Section 31 of the House of Representatives Election Act 2074 states that the Election Commission shall determine the symbols to be distributed to parties and candidates for the election, it seems that this authority has also been given to the Election Commission.

Section 205 of the Unified Election Bill submitted to the government on Asad 18, 2080 contains a provision related to 'NOTA'. In this, voters will be able to vote by marking a special mark on the ballot paper indicating their support for no candidate. And, if such 'NOTA' votes are counted, the election of the relevant constituency will be canceled if it exceeds 50 percent of the total valid votes. Although this bill is under consideration, it seems that the Commission is interested in 'NOTA'.

The demand of the Gen-G rebellion is to make the country more progressive and, in line with the expectations of Gen-G, we can move forward by printing ballot papers with 'NOTA' in the Falgun elections. For this, the courage and willpower of the Election Commission are important. The Commission should definitely not fail to fulfill such an important responsibility given by history.

What should be done now?