In a significant hearing on electoral fairness, the Supreme Court posed a crucial question to the election commission of India (ECI): Should voters be denied the option to reject a sole candidate through NOTA (none of the above)? The observation came while hearing a public interest litigation (PIL) challenging the legality of uncontested elections, where candidates are declared elected without any poll taking place.
A bench comprising justice Surya Kant, justice Ujjal Bhuyan and justice N Kotiswar Singh was considering a PIL filed by the Vidhi Centre for Legal Policy (VCLP), which has questioned section 53(2) of the Representation of the People (RP) Act, 1951, and Rule 11 of the Conduct of Election Rules, 1961. These provisions allow the automatic declaration of victory for candidates who are the only ones in the fray, effectively bypassing the electoral process.
“If there is just one candidate and voters turn out in large numbers to vote NOTA, expressing clear dissent, should that invisible will be ignored?” justice Kant remarked, calling it an 'interesting question' that merits constitutional examination.
The apex court observed that if voters feel compelled to oppose a sole candidate, the NOTA option must serve a purpose. “Voters may not have the ability to field an independent candidate themselves, but they may still want to register their disapproval,” justice Bhuyan says.
Senior counsel Rakesh Dwivedi, representing the ECI, argued that such situations are rare and that citizens could simply nominate another candidate if they wish to oppose the lone contender. However, the bench disagreed, pointing out that setting up candidates isn’t always feasible for the electorate.
Attorney general R Venkataramani, appearing for the Union government, termed the issue an 'academic exercise' not warranting judicial intervention. He noted that unopposed elections have been rare, with just a handful of such cases reported since 1991.
But the counsel for VCLP contested this, citing at least 26 instances of unopposed wins in Parliament and assembly elections since 1952, including the recent case of an uncontested win in Surat during the 2024 Lok Sabha elections.
The court, however, dismissed the idea that this was a theoretical debate. “Even if such elections are infrequent, they raise fundamental concerns about voter choice and democratic legitimacy,” the bench says.
The Association for Democratic Reforms (ADR), which was granted intervention in the case, supported the idea that elections should be countermanded if NOTA receives more votes than the lone candidate. Senior counsel Prashant Bhushan, appearing for ADR, says that several states already follow this rule in local body elections, but there is no corresponding provision at the national level.
The Supreme Court’s 2013 ruling in People’s Union for Civil Liberties vs Union of India had recognised NOTA as a form of expression under article 19(1)(a). VCLP, the petitioner, argued that denying this option in uncontested elections violates that constitutional right.
The bench also floated the idea of requiring a minimum vote threshold (say 5%–15%) even in uncontested elections to prevent backdoor entries to Parliament or state assemblies. “Some affluent candidates may get elected unopposed if others withdraw. This leaves both voters and the EC helpless,” the bench observed in an earlier hearing.
ECI, in its affidavit, acknowledged that NOTA has never impacted the outcome of any election since its introduction. While some losing candidates have polled fewer votes than NOTA, no winning candidate has. The commission also submitted that making NOTA binding in uncontested polls would require changes to the RP Act and Conduct of Election Rules, which is within the Parliament’s domain.
However, the bench maintained that a mechanism must be devised for future contingencies. The case is now expected to evolve into a detailed judicial review of whether a 'silent rejection' by voters via NOTA can override automatic victories, and whether such expression deserves legal sanctity.