NOTA hasn’t made elections ‘pure’, nullify poll if it gets maximum votes, says new plea in SC

Acting on Ashwani Kumar Upadhyay’s plea, SC has issued notices to Centre & EC, seven years after it introduced the NOTA button as a ‘basic right’ of voters.

Illustration by Soham Sen | ThePrint Team

New Delhi: In 2013, the Supreme Court, in a landmark verdict, introduced ‘None of the Above’ or NOTA to allow voters to cast a “negative vote” to reject all candidates as unworthy.

The court held that the right to vote as well as the right to say “none of the above” constituted a basic right of the voters, and said the option would foster “purity” and “vibrancy” in elections. It also expressed hope that NOTA would force political parties to choose better candidates, and negative voting would lead to systematic change in polls.

But more than seven years later, NOTA is in the news again, with the top court issuing notices to the Centre and the Election Commission of India (ECI) last Monday on a petition filed in November 2020 to nullify election results and hold fresh polls if NOTA secures maximum votes.

The petitioner, Ashwani Kumar Upadhyay, a BJP leader, has claimed merely having a NOTA button in voting machines does not fully enforce the principle of “right to reject”.

Upadhyay told ThePrint that despite the 2013 verdict, there has been an increase of 44 per cent in the number of Lok Sabha MPs facing criminal cases since 2009, and that prompted him to move the fresh petition.

According to legal experts, Upadhyay’s demand is valid to preserve democratic principles. They, however, question the top court’s jurisdiction to entertain such a petition. The Representation of the People Act, 1951, empowers and mandates the EC to declare the candidate who polls maximum votes as the winner, they said, adding that a positive direction on the petition would amount to changing the law.

The NOTA judgment

With the 2013 judgment, the Supreme Court for the first time recognised a voter’s “right to reject” and said the right to vote included the “right not to vote”, underlining equal opportunity for all.

In a 50-page judgment, the bench stated “democracy is all about choice”, and that negative voting would ensure wider participation as people who are unsatisfied with the candidates in fray would also turn up to express their opinion.

A voter’s right to reject a candidate is a part of the fundamental right to freedom of speech and expression granted by the Constitution, the court held, ordering the EC to make sure a voter is able to exercise this right while maintaining secrecy regarding his/her identity.

The judgment, however, did not delve into a situation where the votes cast under NOTA were more than what the candidates polled.

NOTA was first used in the 2013 assembly elections held in four states — Chhattisgarh, Mizoram, Rajasthan and Madhya Pradesh.

‘Candidates who lose to NOTA shouldn’t get to contest again’

In his petition before the SC, Upadhyay has extensively quoted the report of non-profit organisation Association for Democratic Reforms (ADR) to highlight the increase in the number of MPs with criminal background.

In 2009, 162 out of 543 MPs had declared criminal cases against them, while in the current Parliament, there are 233 out of 539. Twenty-nine per cent MPs are charged with heinous offences, including rape and murder.

Upadhyay argues that rejecting the contesting candidates and electing new ones if NOTA gets the maximum votes is not just necessary for free and fair elections, but also essential for de-criminalisation of politics. He has also sought a direction not to allow candidates who secure votes less than NOTA to recontest.

Trilochan Sastry, chairman of ADR, said the group had, in multiple surveys, found that in some constituencies, the winning margin between the candidate who won and the runner-up was less than the votes polled for NOTA. He added fresh elections should be held in case NOTA receives more votes than the contesting candidates.

State election commissions’ notifications

Although the EC is yet to take a call on the issue, state election commissions in Maharashtra and Haryana in 2018 issued notifications to countermand municipal and panchayat polls where NOTA received the highest number of valid votes.

“If it is noticed while counting that NOTA has received the highest number of valid votes, then the said election for that particular seat shall be countermanded and fresh elections shall be held for such a post,” read the notification issued by SEC of Maharashtra on 13 June 2018.

Haryana’s SEC issued a similar notification on 22 November 2018, but went a step further and modified the law to make all those candidates who individually secure less votes than NOTA ineligible from re-filing their nominations to contest in the follow-up elections.

Experts question SC’s jurisdiction

Prominent legal experts ThePrint spoke to found merit in Upadhyay’s contention to hold elections again in a constituency where NOTA gets more votes.

Former Union law minister and senior Supreme Court advocate Ashwani Kumar feels the 2013 judgment has not served its purpose, and despite the “noble intentions” that had inspired the court to give the order, the directions have not been able to ensure “purity of elections”.

“What is central to the functioning of parliamentary democracy is that people should have a representative. And, if for some reason, in a round of election no name is thrown up, then the electorate has every right to have another poll,” Kumar, a senior Congress leader, said.

Supreme Court advocate Shekhar Naphade said Upadhyay’s prayer is a meaningful one, but it is in contrast to what the election law is. “How can the top court alter this legal position on a PIL filed under Article 32 (violation of fundamental right)?” he asked.

According to senior advocate Rajeev Dhavan, it would be “preposterous to cancel an election” if voters say they are not interested in electing any candidate. In such a scenario, NOTA can be misused by a political party to make sure that if its candidate is not winning, then nobody wins, Dhavan warned.

“The election law is very clear on this subject, and to now ask for fresh elections would be stretching the idea of ‘right to reject’ too far,” Dhavan said.

(Edited by Shreyas Sharma)