A dissection of section 49-O of the Conduct of Election Rules

Lately, there has been a buzz over the section 49-O of The Conduct of Election Rules, 1961[PDF] on blogs, newspapers, email forwards and microblogs.

SunniestGnome did a post on Jai Hind in October last year about the section 49-O. The post carries a discrepancy, viz. the provisions for cancellation of results or disqualification of candidates.

A discussion on twitter with @Sengupta, @nikhilnarayanan & @sh00nya ended up into a collection of some useful and determining material about this.

I follow this up with excerpts of the complete discussion below. Going through it and the enclosed links can really clear a lot of myths about this highly discussed but not very prevalent provision:

nikhilnarayanan: There is no section 49-0 on voting right! http://www.indianexpress.com/news/the-chatteranti/394809/2

imba: RT @nikhilnarayanan: There is no section 49-0 on voting right! http://www.indianexpress.com/news/the-chatteranti/394809/2

Sengupta: @nikhilnarayanan @imba There’s no 49-O in the constitution. 49-O is a Rule in the The Conduct of Elections Rules.

Sengupta: 49-O is meant to prevent electoral fraud and has no provisions for cancellation of results or disqualification of candidates.

nikhilnarayanan: @Sengupta so, Shekhar Gupta is wrong? :O

Sengupta: @nikhilnarayanan No. He’s absolutely right. He said it’s not there in the constitution- just hasn’t mentioned where the confusion stems from

nikhilnarayanan: @Sengupta ok. http://www.hinduonnet.com/2004/04/28/stories/2004042805150500.htm

Sengupta: @nikhilnarayanan The article is fine, but unfortunately the The Conduct of Elections Rules don’t specifically say what will happen (contd)

Sengupta: @nikhilnarayanan if the number of 49-Os is greater than the number of votes for any one candidate. This is one of it’s biggest problems.

Sengupta: @nikhilnarayanan I do believe there’s some work to be done yet to bring some clarity into the whole issue.

sh00nya: @Sengupta @nikhilnarayan has any one read this in its entirety http://lawmin.nic.in/legislative/election/volume%202/conduct%20of%20election%20rules,%201961.pdf

nikhilnarayanan: @Sengupta Agreed. Someone has to clarify.

Sengupta: @sh00nya I’ve read this bit: http://txtb.in/nY That’s all. I’m no expert on the rule. Just putting in my $0.02.

Sengupta: @sh00nya @nikhilnarayanan This seems to explain the status quo fairly well: http://www.49-o.info/ [MUST SEE]

sh00nya: @Sengupta true that’s there in the Conduct of Elections Rule 1961 going thru the 139 pg doc lemme see if i can get any details

Sengupta: @sh00nya Here: http://lawmin.nic.in/ld/subord/cer1.htm About halfway through the page.

sh00nya: @Sengupta precisely :) was going through the info there

h00nya: Point 11 of ECI guidelines says same http://www.eci.gov.in/ECI_voters_guideline_2006.pdf [MUST SEE] abt 49-O. only a note is made in Form17A, the secrecy of voter is nt protected though

nikhilnarayanan: @Sengupta Mutiny says somethin on 49-0 http://mutiny.in/2008/12/07/the-real-deal-behind-49-0/ [MUST SEE]

I hope this clears a lot of your misconceptions about the provision and keeps you better informed about the same.

Jai Hind

0 thoughts on “A dissection of section 49-O of the Conduct of Election Rules”

  1. See my comment re 49-O on the article Mumbai to Shanghai via Baghdad…I reproduce same here to clear the air once and for all…
    The current Rule 49-O of the Conduct of Elections …is flawed and powerless as well as it exposes the voter! It needs to be modified to allow for a column in the ballot paper “None of the Above Candidates” so a voter can tick that if he does not wish to vote anyone. Draft of amendment could be:

    “1. If the voter does not wish to vote any of the contesting candidates, he shall put the prescribed mark on the ballot paper at the place within the space containing the symbol of “none of the above candidates”;

    And, To give more force to the rule, additional clause(s) should be added … for eg.

    2. (i) Notwithstanding anything contained in any Article of this Order, if the number of “none of the above candidates” votes exceeds 50% (fifty percent) of the total votes cast in any constituency, the Returning Officer shall cancel the election proceedings after giving an immediate notice and inform the Commission accordingly.

    (ii) Where election proceedings are canceled under clause (2i), fresh proceedings shall be commenced in accordance with the provisions of this Order as if for a new election and the Candidates who contested will not be eligible for contesting again.”

    See http://www.eci.gov.in/PROPOSED_ELECTORAL_REFORMS.pdf Proposed Electoral Reforms … Recommendations since 2001 and resubmitted in 2004. Part I, Chapter 7 reproduced here..
    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 inasmuch 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 proviso 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 petition by the People’s Union for Civil Liberties seeking such a provision filed at the time of the
    recent general elections is pending before the Hon’ble Supreme Court)

    Do you believe the government from the current breed of political parties will APPROVE the inclusion of these clauses? They will forever be ‘pending’, least of all ‘legislation’ by the Government. I think NO elected politician from the current breed and therefore no government would wish to make these electoral changes.

    Therefore, an alternative forceful method has to be devised to get the government ‘to listen and adhere to the voice of the people!’

    A cohesive online and offline Campaign to get these clauses included in the Conduct of Elections Rules will be a huge ‘first’ victory to the People’s Power. And this should happen IMMEDIATELY at least PRIOR to the Upcoming Parliamentary elections on April 2009. Any takers?

  2. Dear Friends !
    It is an estabilished principle of law that any legitimate consent automatically includes right to withold consent. From this logic, right to vote automatically includes right not to vote. In times of paper ballot, we could have anonymously cast our rejection of candidates by dropping in ballot paper without any marking. However, EVM machine doesn’t have a ‘None of the above(NOTA)’ button. This renders R 49-O lame n duck as we can’t exercise our right to rejection in present day polls without getting exposed.
    Former Vice President late Krishna Kant who was a champion of civil liberties famously espoused ‘voter’ right to reject a candidate’. Thereafter, 15th Law Commission in its 170th Report asked the govt to provide for negative voting. ECI asked the govt twice in 2001 & 2004. But to no avail. Currently, a writ petition filed by PUCL on this matter (161/2004) is pending before the Supreme Court.
    In case citizens are really serious abt this right , they need to petition the govt for this facility or raise a movement for this purpose. I see no other way, it can b achieved.

    RS Srivastav

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