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10) Ms. Kamini Jaiswal and Mr. Raghenth Basant, learned counsel appearing for the impleading parties, while agreeing with the stand of the petitioners as well as the Election Commission of India, prayed that necessary directions may be issued for providing another button viz., “None of the Above” (NOTA) in the Electronic Voting Machines (EVMs) so that the voters who come to the polling booth and decide not to vote for any of the candidates, are able to exercise their right not to vote while maintaining their right of secrecy.

57) As mentioned above, the voting machines in the Parliament have three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote.

58) The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy. The following countries have provided for neutral/protest/negative voting in their electoral systems:

|S.No |Name of the Country |Method of Voting |Form of Negative | | | | |Vote | |1. |France |Electronic |NOTA | |2. |Belgium |Electronic |NOTA | |3. |Brazil |Ballot Paper |NOTA | |4. |Greece |Ballot Paper |NOTA | |5. |Ukraine |Ballot Paper |NOTA | |6. |Chile |Ballot Paper |NOTA | |7. |Bangladesh |Ballot Paper |NOTA | |8. |State of Nevada, USA |Ballot Paper |NOTA | |9. |Finland |Ballot Paper |Blank Vote and/or| | | | |‘write in*’ | |10. |Sweden |Ballot Paper |Blank Vote and/or| | | | |‘write in*’ | |11. |United States of |Electronic/Ballot |Blank Vote and/or| | |America |(Depending on |‘write in*’ | | | |State) | | |12. |Colombia |Ballot Paper |Blank Vote | |13. |Spain |Ballot Paper |Blank Vote | * Write-in’ – The ‘write-in’ form of negative voting allows a voter to cast a vote in favour of any fictional name/candidate.

60) Taking note of the submissions of Election Commission, we are of the view that the implementation of the NOTA button will not require much effort except for allotting the last panel in the EVM for the same.

61) In the light of the above discussion, we hold that Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting.

In view of our conclusion, we direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called “None of the Above” (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses.