Instead of deriding NOTA as a toothless or failed idea, all stakeholders must combine to make it stronger
‘None of the above’ (NOTA) as an option was introduced in the EVMs on the basis of the Supreme Court judgement in the PUCL vs Union of India case of September 27, 2013. The court then stated, ‘For democracy to survive, it is essential that the best available men should be chosen as people’s representatives. This can best be 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 may compel political parties to nominate a sound candidate.’
Additionally, a key component that came out of the judgment was that right to vote also includes the right to reject. The right to reject has its genus in the freedom of speech and expression.
The same exact pious sentiments were expressed by the founding fathers of the Constitution during the Constituent Assembly debates. Unfortunately, over the decades, political parties have ignored this sane advice and, on the contrary, have been fielding more and more candidates with criminal antecedents. ADR statistics show that between 2014 and 2024 General Elections, there was an increase of 36 per cent in the number of MPs and 17 per cent in the number of candidates who declared criminal cases against themselves.
Over the years, the apex court has passed a slew of judgements to put pressure on political parties to field untainted candidates, but to no avail.
On April 24, the court heard arguments on a public interest litigation (PIL) filed by Vidhi Centre for Legal Policy challenging the Sec 53(2) of the Representation of People Act 1951, which provided for direct election of candidates in uncontested polls. During the hearing, the bench of Justice Surya Kant and Justice N Kotiswar Singh stated that there was no need to strike down Sec 53(2) and suggested that one enabling provision can be added under it that candidates would have to secure a minimum percentage of votes before they are declared winner, say 10 per cent or 15 per cent votes.
The bench said that the Centre could constitute a small expert body to examine the issue and deliberate on prescribing a minimum vote percentage benchmark for winning candidates. The bench also wanted to know why somebody should be allowed to enter Parliament by default without contest even after not getting a minimum 5 per cent of votes.
In October, when the petitioners filed the PIL, another important prayer was that a provision of the Representation of the People Act, 1951, prevented voters from choosing the NOTA option if there was only one candidate. During the recent hearing, an interesting aspect emerged when the lawyer representing the Election Commission of India stated that NOTA is a failed idea and the attorney-general representing the Centre concurred with this statement.
So, is NOTA dead?
In the 2019 Lok Sabha elections, 65,14,558 NOTA votes (1.06 per cent) were polled and in 2024, 63,72,220 NOTA votes (0.99 per cent) were polled. In 2024, there were many constituencies which had a fairly large percentage of NOTA votes. Indore (Madhya Pradesh) topped with 14 per cent, followed by Araku (Andhra Pradesh) with 4.33 per cent, Gopalganj (Bihar) with 4.03 per cent, and Nabarangpur (Odisha) with 3.48 per cent.
Among the top three states, the percentage of vote share of NOTA in 2024 Lok Sabha elections was Jharkhand at 1.13 per cent, Uttarakhand at 1.1 per cent, followed by Tamil Nadu 1.07 per cent.
Though NOTA was not applicable to elections for panchayats and urban local bodies, some states amended their laws and implemented it. In 2018, the Maharashtra State Election Commission (SEC) studied local body elections over the previous two years and found several cases where NOTA had won more votes than the winning candidate. In November 2018, the SEC declared that if NOTA gets maximum votes in an election, re-election would be held. However, the rejected candidates were not debarred from re-election. Soon after that, the Haryana SEC also followed suit and announced that NOTA would be treated as a fictional candidate and a re-election would be conducted if NOTA won the majority vote in the municipal election of December 2018.
Many have criticised the NOTA option, arguing that it has no electoral value; some say that it has potential for misuse and may undermine representative democracy. One criticism is that NOTA may be used by political parties or powerful candidates as an expression of bias against caste, as seen in the case of reserved constituencies. Voters may be compelled into voting NOTA against a particular candidate.
In 2016-2017, some petitions were filed to strengthen the impact of NOTA by asking for power to reject candidates if NOTA wins majority and bar the rejected candidates from re-contesting. However, the Supreme Court ruled that such a situation is unworkable and that ‘ holding elections in our country is a very serious and expensive business’.
The counter-argument to this can be that a tainted candidate who indulges in corruption and malpractices is a greater cost to the country. It is so obvious that nowadays, the sole desire is to remain in power and make money, moral values and ethics be damned. The expenditure issue can also be resolved by the losing political parties being made to bear the cost of re-elections. When conducting re-elections, the NOTA button may be disabled to avoid a series of re-elections.
Therefore, the observations of the Supreme Court on April 24 merit serious consideration by the Centre and the ECI as regards inserting and enabling proviso and laying down a minimum acceptable percentage of votes which the lone candidate must win. The NOTA option must also be exercised in case of a single candidate.
As pointed out by the SC bench, withdrawal by other candidates may be attributed to coercion, bribery, high-handedness or threats, hence it should not be a cake walk for the unopposed candidate to enter the legislature. The NOTA option is not merely a procedural technicality; instead, voters use NOTA as a strategic option to express their protest. Many countries in the world have recognised neutral, protest or negative voting in their electoral process; such as France, Sweden, Belgium, and Brazil, among others.
Instead of deriding NOTA as a toothless or failed idea, all stakeholders must combine to make it stronger so that the longstanding aim of the Supreme Court in cleansing the system is achieved.
The article was originally published in the Deccan Herald.