'Deprives Right To Choose NOTA' : RP Act Provision Allowing Election Of Uncontested Candidate Challenged In Supreme Court

The Supreme Court today issued notice on a public interest litigation challenging Section 53(2) of the Representation of the People Act ("RP Act"), which provides for direct election of candidates in uncontested elections ie without conduct of a poll.

A bench of Justices Surya Kant and Ujjal Bhuyan passed the order, upon hearing Senior Advocate Arvind Datar, who appeared and argued on behalf of petitioner-Vidhi Centre for Legal Policy.

During the hearing, the bench posed to Datar as to whether the petitioner should also challenge Section 53(3) of the RP Act? For context, while Section 53(2) provides for direct election when the number of contesting candidates equals the number of seats to be filled, Section 53(3) permits direct election when the number of contesting candidates is less than the number of seats.

"Analogy of Section 53(2) has been legislatively applied to Section 53(3) also...", said Justice Kant.

Datar conceded to the same, seeking liberty to amend the petition and add a prayer in that regard. Ultimately, the bench issued notice on the petition and permitted service to the respondent(s) through the office of the Attorney General.

In the present petition, the petitioner has raised a challenge to Section 53(2) of the RP Act as well as to Rule 11 read with Forms 21 and 21B of the Conduct of Election Rules, 1961.

In terms of Section 53(2), if the number of contesting candidates in an election is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats. Rule 11 of Conduct Rules, 1961, likewise, deals with declaration of results of an uncontested election in such form [Form 21 (in case it is a general election) or Form 21B (in case it is an election to fill a casual vacancy)] as may be appropriate.

As per the petitioner, these provisions prohibit the returning officer from conducting a poll if the number of contesting candidates is equal or less than the number of seats to be fulfilled, and result in deprivation of a voter's fundamental right to choose 'NOTA' (None of the Above) as an expression of his dissatisfaction with the contesting candidate(s).

"This is a violation of a fundamental right, as in its judgement in People's Union for Civil Liberties v Union of India (2013) 10 SCC 1 this Hon'ble Court has held that the right to cast a negative vote by choosing the NOTA option on an EVM is protected in direct elections under Article 19(1)(a) of the Constitution of India."

In support of the plea, the petitioner points out that a sole candidate from Surat constituency was declared the winner in the recent Lok Sabha polls, since the election was uncontested. It is further stated that the combined figure of unelected candidates since first Lok Sabha and Assembly elections is 258.

Contentions Raised

- Section 53(2) of RP Act is ultra vires the Constitution and liable to be read down/struck down to ensure conformity with Article 19(1)(a), since a voter has been held to have a right to cast a negative vote;

- After the judgment in PUCL v. Union of India and mandatory incorporation of NOTA option in EVMs, Section 53(2) and Rule 11 have become unreasonable with passage of time;

- The impugned Rule, in its effect, has unintelligibly distinguished two classes of voters in a direct election: first, those enrolled in a constituency where the number of candidates is more than the number of seats to be filled, and second, those enrolled in a constituency where the number of candidates is equal to the number of seats to be filled;

- Uncontested seats are a common occurrence in State Legislative Assemblies. In 2024 Arunachal Pradesh elections, 10/60 seats were won uncontested;

- The impugned provisions do not further transparency, as in all constituencies where polls were not conducted, voter turnout could not be recorded.

In April, the Supreme Court had issued notice on a petition seeking to declare an election null and void if maximum votes are cast for NOTA.

Case Title: VIDHI CENTRE FOR LEGAL POLICY Versus UNION OF INDIA AND ANR., W.P.(C) No. 677/2024

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