The Centre has firmly stated that the 'None of the Above' (NOTA) option cannot be treated as a candidate in elections, even in situations where there is only one candidate contesting. This stance was conveyed to the Supreme Court, which is currently examining the availability and implications of the NOTA option in uncontested elections.
The Supreme Court is deliberating on a Public Interest Litigation (PIL) that challenges Section 53(2) of the Representation of the People Act, 1951. This section allows candidates to be declared elected without a poll if the number of contesting candidates equals the number of seats to be filled. The PIL argues that this provision infringes upon a voter's fundamental right to express dissatisfaction with candidates by choosing NOTA. The petitioner, Vidhi Centre for Legal Policy, contends that without the option to vote for NOTA, voters are deprived of their right to reject a candidate, violating Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression.
The Supreme Court bench, comprising Justices Surya Kant, Ujjal Bhuyan, and N Kotiswar Singh, has questioned the absence of NOTA in uncontested elections, deeming it an issue "worth examining". The Court has raised concerns about whether the "invisible will" of voters who may wish to vote NOTA should be defeated when there is only one candidate. They have also explored the scenario where NOTA votes exceed the votes garnered by the single candidate, questioning the course of action in such a situation.
Representing the Election Commission (EC), Senior Advocate Rakesh Dwivedi argued that NOTA has never impacted an election since its inception. He stated that every winning candidate has always secured more votes than NOTA, even though some losing candidates have received fewer votes than NOTA. However, he assured the court that the EC would conduct elections as mandated by law and the orders of the Supreme Court. The EC has also stated that treating NOTA as a mandatory contesting candidate would require legislative amendments to the Representation of the People Act, 1951, and the Conduct of Elections Rules, 1961.
Additional Solicitor General SD Sanjay, representing the Centre, raised concerns about the potential consequences of allowing NOTA to effectively countermand an election. He argued that if a fresh election were to be held after NOTA received more votes than the sole candidate, a similar situation could arise again, leading to an endless cycle. However, the bench responded that such a situation was unlikely to persist, as political parties would be compelled to field candidates in subsequent elections.
Attorney General R Venkataramani, also appearing for the Union government, argued that the matter was purely an "academic exercise" and saw no need for judicial intervention. He stated that the Centre had already considered the matter.
The Supreme Court had introduced the NOTA option in 2013, following a petition by the People's Union for Civil Liberties. The intention was to allow voters to express their disapproval of all contesting candidates and encourage political parties to nominate candidates with high moral and ethical values. Despite these intentions, the Election Commission has suggested that the NOTA option is a "failed idea" as it has not significantly impacted election outcomes. Data indicates that NOTA's vote share has generally remained around 1% in Lok Sabha and most Assembly elections since its introduction.
The Supreme Court's examination of NOTA in uncontested elections highlights the ongoing debate about electoral rights and the extent to which voters should be able to express their dissatisfaction with the available choices. The decision could potentially lead to significant changes in the electoral process, particularly in cases where candidates are elected unopposed.
