Supreme Court Seeks ECI Response On Plea To Cancel Election If NOTA Gets Majority Votes

The Supreme Court on Friday (April 26) issued notice on a petition seeking a direction that an election must be declared as "null and void" if maximum votes from the constituency are polled for "None of The Above" (NOTA) and a fresh election should be held for the constituency. 

The petitioner also sought a direction that the same candidates, who lost to NOTA, should be barred from contesting the bye-election which is held after the cancellation of the first election where NOTA got majority votes.  Further, there should be proper publicity for NOTA as a "fictional candidate." The petitioner sought directions to the Election Commission of India (ECI) to frame appropriate rules in this regard.

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra agreed to consider the issues raised by petitioner Shiv Khera. NOTA was introduced in the Electronic Voting Machines following a direction issued by the Supreme Court in 2013 in a PIL filed by the Peoples Union for Civil Liberties (PUCL). NOTA gives the option to the voter to reject all candidates as unsatisfactory. However, as per the existing law, there is no legal consequence if NOTA gets the majority of the votes. In such an eventuality, the next candidate will be declared as the winner.

The petition highlighted the positive impact on voter turnout in Maharashtra, Haryana, Delhi and Puducherry where electoral laws were reformed by incorporating NOTA-related rules. 

" The most significant change brought in the form of NOTA was seen in Maharashtra, Haryana, Delhi and Puducherry. The respective State Election Commission (SEC) declared that if NOTA emerged as the winner in any election, there would be a mandatory re-poll. This was the first significant change in the electoral system since the inception of NOTA. The notification put forward by the respective State Election Commissions fields NOTA as a fictional candidate and categorically holds that declaring the second highest candidate as winner (in case NOTA gets the highest votes), violates the underlying principle and object of NOTA." 

Senior Advocate Gopal Sankaranarayanan, appearing for the petitioner, cited the recent example of the Surat constituency, where the BJP candidate was declared the winner without any election as the nomination of the Congress candidate got rejected and other candidates withdrew their nominations. Even if there is only one candidate, there should be an election as the voter should have the option to vote for NOTA. "In Surat where nobody else has appeared, they are forced to go with whoever the candidate is," he submitted.

Observing that the petitioner was seeking to develop the law further from the judgment laid down by the Supreme Court, CJI Chandrachud agreed to consider the matter.

"Let us see what the Election Commission has to say, " CJI commented.

As per the written submissions, the following reliefs are sought : 

1. Directing the Respondent to frame rules to the effect that if NOTA gets a majority, the election held in the particular constituency shall be declared null and void and a fresh election shall be conducted to the constituency.
2. Directing the Respondent to frame rules stating that the candidates who poll fewer votes than NOTA shall stand debarred from contesting all elections for a period of 5 years;
3. Directing the Respondent to ensure proper and efficient reporting/publicity of NOTA as a “Fictional Candidate”

The PIL was filed with the assistance of AOR Shweta Mazumdar

Case Title : SHIV KHERA Vs THE ELECTION COMMISSION OF INDIA | W.P.(C) No. 252/2024

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