Can Voters Be Denied NOTA Option In Elections With Only One Candidate? Supreme Court Asks ECI

"If there is one candidate, but substantial part of voters, through NOTA (None of the Above), do not want him to be elected, should their 'invisible will' be [allowed to be] defeated?" the Supreme Court questioned yesterday during the hearing of a PIL challenging direct election of candidates in uncontested elections (that is, without conduct of a poll).A bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh was dealing with Vidhi Centre for Legal Policy's plea against Section 53(2) of the RP Act as well as Rule 11 read with Forms 21 and 21B of the Conduct of Election Rules, 1961.In terms of Section 53(2), if the number of contesting candidates in an election is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats. Rule 11 of Conduct Rules, 1961, likewise, deals with declaration of results of an uncontested election in such form [Form 21 (in case it is a general election) or Form 21B (in case it is an election to fill a casual vacancy)] as may be appropriate.During the hearing, Justice Kant expressed that before people come out to vote 'NOTA', there must some serious resentment against a candidate, making the NOTA option effective. Senior Advocate Rakesh Dwivedi, for ECI, argued that if there is so much resentment, people can set up an independent candidate. However, Justice Bhuyan disagreed, saying "it's not in the hands of the people, therefore people will go vote for NOTA...". At last, Dwivedi urged that ECI has no problem if law is so laid down.Attorney General for India R Venkataramani and ASG SD Sanjay informed the Court that apart from the Election Commission, the Union has also filed an affidavit in the matter. However, as the same was not on record, the matter was adjourned. On the issues involved, the AG told the Court that there is only an "academic exercise" involved, as since 1991, there has hardly been any instance of uncontested election. This was however refuted by the petitioner's counsels.Notably, the Association for Democratic Reforms sought intervention in the matter, which was allowed. Advocate Prashant Bhushan appeared for ADR and informed that many states have adopted a law as per which if NOTA receives more votes than a candidate in the local elections, then the elections shall be held afresh. However, there is no such rule in the case of Lok Sabha.BackgroundAs per the petitioner, the impugned provisions prohibit the returning officer from conducting a poll if the number of contesting candidates is equal or less than the number of seats to be fulfilled, and result in deprivation of a voter's fundamental right to choose 'NOTA' as an expression of his dissatisfaction with the contesting candidate(s)."This is a violation of a fundamental right, as in its judgement in People's Union for Civil Liberties v. Union of India (2013) 10 SCC 1 this Hon'ble Court has held that the right to cast a negative vote by choosing the NOTA option on an EVM is protected in direct elections under Article 19(1)(a) of the Constitution of India."In support of the plea, the petitioner points out that a sole candidate from Surat constituency was declared the winner in the recent Lok Sabha polls, since the election was uncontested. It is further stated that the combined figure of unelected candidates since first Lok Sabha and Assembly elections is 258.In April, 2024, the Supreme Court had issued notice on a petition seeking to declare an election null and void if maximum votes are cast for NOTA.Case Title: VIDHI CENTRE FOR LEGAL POLICY Versus UNION OF INDIA AND ANR., W.P.(C) No. 677/2024 Click Here To Read/Download Order

Can Voters Be Denied NOTA Option In Elections With Only One Candidate? Supreme Court Asks ECI

Debby Jain

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