A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian agreed to entertain a PIL filed by advocate Ashwini Kumar Upadhyay but said such a move could cause disruptions in formation of Parliament and assemblies after elections.
Senior advocate Menaka Guruswamy, appearing for Upadhyay, said though Nota was an option for voters, it didn’t appear to have prodded political parties to select “good candidates” sans criminal antecedents as the number of Nota votes had no impact on the outcome of elections. “The petitioner wants that if Nota votes exceed that of the winning candidate, then the election should be cancelled and fresh election be held,” she said.
The CJI said in our electoral system, this could be counter-productive. “Imagine a political party having influence over voters succeeding in convincing them to cast negative votes in many constituencies. This would result in many seats in Parliament and assemblies going vacant and make it difficult for constitution of Houses. Moreover, a constituency would go unrepresented for a long time,” the bench said.
Guruswamy said rejection of all candidates would make political parties select those with clean track records and this would go a long way in preventing criminalisation of politics. The CJI asked, “Do you think political parties do not do this exercise?”
If “NOTA” gets more votes than any of the candidates, it means the electorate believes none of the candidates are fit for the job. In such a case, there should be a re-election in which the rejected candidates cannot contest. That’s what would make NOTA potent and meaningful. Without such an option, it is a token gesture. If the proposal seems too radical, it could be first tried out in local body elections before proceeding further.
The petitioner replied, “If Nota gets a majority of votes, then election to that constituency should be cancelled and a fresh election should be held within a particular time. The candidates rejected in nullified elections should not be allowed to participate in the fresh election. The right to reject contesting candidates and elect a new candidate, if Nota gets maximum votes, is not only necessary to ensure free and fair election but is also essential for de-criminalisation and de-communalisation of polity.”
Nota as an option was introduced in EVMs on the basis of the SC judgment in PUCL case on September 27, 2013. The SC had said, “For democracy to survive, it is essential that the best available men should be chosen as people’s representatives. This can be best achieved through men of high moral and ethical values, who win elections on a positive vote. Thus, in a vibrant democracy, the voter must be given an opportunity to choose Nota, which will compel political parties to nominate a sound candidate.”
On October 29, 2013, the EC had issued a circular saying in the event of Nota getting votes which exceed the number of votes polled by any candidate, then the one with the highest number of positive votes would be declared winner. This meant that even if Nota got a majority of votes cast in an election, it would have no impact on the outcome of the poll. On August 21, 2018, the SC had quashed an EC notification providing for Nota option in ballot papers for Rajya Sabha elections, saying the negative vote option would be applicable only for direct elections to Lok Sabha and assemblies.