Urban Legend - Act 49-O

While the parliamentary election were on in India, I received several emails to exercise my right of not giving my vote to anyone. The general email reads as follows:

"Did you know that there is a system in our constitution, as per the 1969 act, in section "49-O" that a person can go to the polling booth, confirm his identity, get his finger marked and convey the presiding election officer that he doesn't want to vote anyone !!!! Yes, such a feature is available, but obviously these seemingly notorious leaders have never disclosed it. This is called"49-O".
Why should you go and say "I VOTE NOBODY"... because, in a ward, if a candidate wins, say by 123 votes, and that particular ward has received "49-O" votes more than 123, then that polling will be canceled and will have to be re-polled. Not only that, but the candidature of the contestants will be removed and they cannot contest the re-polling, since people had already expressed their decision on them. This would bring fear into parties and hence look for genuine candidates for their parties for election. This would change the way, of our whole political system... it is seemingly surprising why, and election commission has not revealed such a feature to the public.... please spread this news to as many as you know... Seems to be a wonderful weapon against corrupt parties in India... show your power, expressing your desire not to vote anybody, is even more powerful than voting... so don't miss your chance. So either vote, or vote not to vote (vote 49-O) and pass this info on..."

While there is some truth in the email, some of it is false.

Truth: Yes there is a clause in "Conduct of Election Rules, 1961" called 49-O, which is very similar to the one described in the email. The clause says:

"49-O. Elector deciding not to vote.-If an elector, after his electoral roll number has been duly entered in the register of voters in Form-17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark." [Ref]

False: Although there is a clause named 49-O and it also give you a right not to vote, it has no tooth. I mean there is no provision for re-election, re-polling, or removal of the candidature of the candidates.

The clause is mainly to help avoid proxy voting. If you don't want to give your vote to anyone, and also don't want someone else to do proxy voting in your name, you can go and exercise your right to not to vote. This would make it impossible for someone else to cast vote in your name.

The problem in exercising this right is that your identity would be revealed. Earlier, in times of old Ballot Paper, you could leave the paper blank and drop it in the box. However, the new EVMs doesn't have an option of 'None of the above'. If you exercise this right, the polling official and the polling agent would come to know about it. The proposed election reforms have considered this issue, and have suggested an extra option on the EVMs. [Ref]

Now about the tooth part, there are PILs and several activists trying to convice Supreme Court and Election Commission to amend this clause and give it some tooth.

So there exists a clause named 49-O and it does take care of 'Negative / Neutral Voting'. However it doesn't have any option of cancelling the election in the particular are, or forcing re-polling.