SC notice to EC to declare elections as void if NOTA votes higher than any candidate

NEW DELHI: The Supreme Court on Friday issued notice to the Election Commission on a PIL for a direction to declare a particular election as null and void if the votes polled to NOTA are higher than votes received by any of the contesting candidates.

The plea highlighted an attempt to fortify the citizens' right to reject and force political parties to field better candidates.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra sought a response from the poll panel on the plea filed by activist and author Shiv Khera.

Senior advocate Gopal Sankaranarayanan and advocate Shweta Mazumdar, appearing for the petitioner, pointed out the most significant change brought in the form of NOTA was seen in Maharashtra, Haryana, Delhi and Puducherry.

The counsel said in Surat Parliamentary constituency, since there was no other candidate, all had to go for only one candidate.

Notably, the BJP candidate in Surat was declared as elected unopposed.

"We will issue notice. This is about the electoral process also. Let us see what election commission has to say on this," the bench said.

The petitioner pointed out the Supreme Court has in the past laid down guidelines and interim directions in the absence of laws and rules such as in Vishaka Vs State of Rajasthan (1997).

He sought a direction of the court to direct the EC to frame rules stating that the candidates who poll fewer votes than NOTA should stand debarred from contesting all elections for a period of five years and direct the poll panel to ensure proper and efficient reporting/publicity of NOTA as a “fictional candidate”.

The counsel said the respective State Election Commission (SEC) declared that if NOTA emerged as the winner in any election, there would be a mandatory re-poll.

"This was the first significant change in the electoral system since the inception of NOTA. The notification put forward by the respective State Election Commissions fields NOTA as a fictional candidate and categorically holds that declaring the second highest candidate as winner (in case NOTA gets the highest votes), violates the underlying principle and object of NOTA," the plea said.

"The Election Commission, however has failed to regard NOTA as a valid candidate which in a democratic form of governance is essential since NOTA, is not merely a citizen ‘not’ voting but is actually a valid selection," the plea said.

The Supreme Court, in a landmark judgment in case of PUCL Vs Union of India (2013) had directed the introduction of NOTA (None of the Above) option in all EVMs.

"This court had an idealistic approach in adopting NOTA in the electoral system, the State Election Commissions utilising their power in the Constitution have turned that idealistic thought into reality. What has begun from the Panchayat and Municipal polls in four states should be implemented uniformly at all levels," the plea said.

The plea said since 2013, the implementation of NOTA has not fulfilled the very purpose that it was supposed to, on the contrary, it has not led to increased voter participation, has not compelled political parties to field good candidates, does not reflect negative votes in election results, and does not honour and respect the majority will/opinion of the people expressed through it.

The plea said the option of NOTA in the Electronic Voting Machines (EVMs) is the result of ‘right to reject’ possessed by the voter in our electoral system. Before India, 13 other countries adopted negative voting or the right to reject. The list included countries like France, Finland, Belgium, Brazil, Bangladesh, Chile, Greece, Sweden, Ukraine, USA, Columbia, and Spain.

"NOTA is seen as a right to reject belonging to the citizen in the present dispensation," it said.

The plea said the idea and purpose of NOTA is to put pressure on political parties to put up better candidates. There continue to be instances when almost all candidates in a constituency have had pending criminal cases.

"What does a voter do? NOTA is a potent weapon in the hands of the voter. Due to lack of awareness and the evident inconsistency within the Election Commission, qua NOTA, has resulted in defeating the purpose of NOTA as an instrument of protest against problematic political and electoral system of the country," it said.