The Supreme Court on Tuesday questioned the efficacy of having none of the above (NOTA) option for voters during elections.
The Supreme Court on Tuesday questioned the efficacy of having none of the above (NOTA) option for voters during elections observing that over a decade since it was introduced by an order of the court, it has hardly impacted the choice of candidates selected by political parties.
A bench of Chief Justice of India (CJI) Surya Kant and justice Joymalya Bagchi said, “We are using NOTA for over a decade. Has the quality of candidates improved? They continue to be selected based on electability and not on moral grounds.”
The observations came while considering a public interest litigation (PIL) filed by Vidhi Centre for Legal Policy which challenged the prevailing practice of allowing an unopposed candidate to enter Parliament or Assembly. According to the petitioner, this defeats the right of voters to choose their elected representatives, preventing them from even exercising the option of NOTA provided by the court through its judgment in 2013.
The court said that its 2013 decision was a persuasive exercise aimed at encouraging voters to come out and vote. “One reason why we had NOTA was to encourage voters to express dissatisfaction towards a candidate. It was to be a persuasive exercise. We wanted people to go out and vote. Even this exercise would only give a sense of persuasiveness just like NOTA.”
While voting has proportionally increased over the country, the court observed that the trend is more popular in rural areas and among the poor population. “It has been observed that it is the well off people in urban cities who vote less while poor people vote more. In rural areas, the day of voting is a day of celebration.”
Senior advocate Arvind Datar appearing for the petitioner told the court that the matter required urgent consideration as elections to six assemblies are due this year.
The bench while agreeing to post the matter in April said, “The point is very interesting. But if the argument is to be accepted that a candidate should not get elected without facing an election, are we not looking at a situation that will create a legislative vacuum as NOTA is not a person but a situation which cannot fill up a seat.”
Attorney general R Venkataramani representing the Centre opposed the suggestion of the petitioners. He said, “We are getting into hypothetical situations. A law cannot be tested on this basis.” He further stated that there is no fundamental right to vote and the right to vote cannot be confused with freedom of voting, the latter which has been preserved by courts.
The bench said that the situation is not hypothetical but one that involves the right of a citizen to express his/her will in a democracy. “If in a constituency, if a threshold of 35% of voters also do not want the candidate, what is the remedy…Strengthening democratic values. With that objective in mind we want to approach this case.”
Advocate Prashant Bhushan appearing for an intervenor - Association for Democratic Reforms (ADR) informed the bench that NOTA will assume significance if only one candidate is in the fray. “NOTA may get more votes than the candidate though it may not result in any change.”
The Centre which has opposed the petition had filed its response in August last year. It had said that the issue is purely an academic question as since 1991, there is hardly any instance of candidates getting elected unopposed. Section 53(2) of the Representation of Peoples Act, 1951 provides for direct election of candidates in an uncontested election.
However, the petition filed through advocate Harsh Parasher mentioned 26 instances of unopposed or uncontested candidates making it to Parliament since 1952.
Even the Election Commission of India (ECI) has opposed the petition pointing out that no election had been decided with a majority of NOTA votes since 2013. Since the coming of the 1951 Act, there were only 9 such instances, the poll panel had stated during an earlier hearing in the matter.