NOTA Applies In Case Of "Contest Of Election", Not Where There Is Only Single Candidate In Fray: AP HC [Read Order]

The Andhra Pradesh High Court last week observed that the option of NOTA cannot be made available when there is a single candidate contesting in the elections, and the candidate shall be declared as unanimously elected.

"During deliberations, while discussing on the nomenclature of NOTA, it clearly reflects that this contingency applies in case where there is contest of election", iterated the bench.

Chief Justice J. K. Maheshwari and Justice B. Krishna Mohan were hearing a PIL to declare the action of the State Election Commission in not conducting any election to a post in a local governing body where there is only a single candidate in the fray in any territorial constituency, thereby depriving the electors of their right to vote in the form of NOTA against such single candidate, as being violative of the Fundamental, Constitutional and other statutory rights of electors.

The petition alleged that merely declaring such single candidate as duly elected as a member of the body, while not enabling and maintaining a record of NOTA votes that may be cast against him, is illegal and arbitrary.

The plea sought a direction to the Commission to conduct the polls and allow casting of vote against such individual in the interests of justice "else the electors and public at large shall suffer irreparable loss and injury".

The plea placed reliance on section 35 A inserted in the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006 by the 2018 Amendment, which reads as under:

(1)"Notwithstanding anything contained in these Rules, in the Postal Ballot Papers and in the Ballot papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), provision shall be made for 'None of the Above' (NOTA) option for the benefit of those electors who may wish to exercise their option of not voting to any of the candidates in the fray. The last panel of the ballot paper below the last candidate shall be earmarked for 'None of the Above' (NOTA) option.

(2) The State Election Commission may give such directions, as may be necessary, for effective implementation of 'None of the Above' (NOTA) option."

The division bench opined that as per the said Rules, provision for 'None of the Above' (NOTA) is required to be made in case of Postal Ballot Papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs).

Looking to the "legislative intent", the Court noted that in cases where candidates have been "declared uncontested", NOTA does not apply, because that option may be permitted to be exercised only "on contest of election".

The court was of the view that as per the language set up in Rule 35-A also, it is reflected that when there is an election through Ballot Boxes or EVMs., only then the said option can be exercised.

"Looking to the said legislative intent and amendment of the word NOTA, the relief as prayed for cannot be granted", stated the bench, however, granting liberty to the petitioner to approach the State Government or the Central Government to do the needful for the cause espoused in this public interest litigation.

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