NOTA and its Consequences

Why was the NOTA Option Introduced, and Its Consequences

GS2 : About NOTA and its consequences with respect to the Voters Right to Secrecy, Implications of Large Number of Votes to NOTA Option, etc.

The BJP’s Shankar Lalwani has won in Indore with a massive 10.09 lakh margin, receiving 12,26,751 votes. His nearest competitor was NOTA, with 2,18,674 votes.

When and Why was the NOTA Option Introduced?

New Record: The extraordinary result in Indore is the most votes that the “None Of The Above” (NOTA) option has ever received in any constituency to date.

The previous NOTA record-holder was Gopalganj, Bihar, in 2019, when 51,660 voters chose this option.

Introduction of NOTA: The Supreme Court directed the Election Commission of India (ECI) to introduce the NOTA option for voters in September 2013, in order to protect the secrecy of voters’ choice.

Voters Right to Secrecy: In 2004 the People’s Union for Civil Liberties (PUCL) had approached the apex court seeking directions to the ECI for measures to protect the ‘right to secrecy’ of voters to exercise their franchise.

They argued that the Conduct of Elections Rules, 1961 violated the secrecy aspect as the Presiding Officer (from the ECI) maintains a record of voters who choose not to vote along with the signatures or thumb impressions of each voter who exercises this right.

The central government, however, argued that the right to vote is “pure and simple a statutory right” (as it is provided by a law, and not the Constitution), and only voters who exercised their right to vote have a right to secrecy as well, not those who have not voted at all.

The three-judge Bench, comprising Chief Justice of India P Sathasivam, and Justices Ranjana Prakash Desai and Ranjan Gogoi, however, held that “Whether a voter decides to cast his vote or decides not to cast his vote, in both cases, secrecy has to be maintained.”

Especially in elections to Lok Sabha and state legislatures, the court held that secrecy is an essential feature of free and fair elections and “No discernible public interest shall be served by disclosing the elector’s vote or his identity.”

Moreover, with the introduction of EVMs, the court noted that anyone present in the polling booth would know if a voter has decided not to vote, as the machine would not emit any light or sound (as it does when a vote is cast).

The court noted that the ECI in 2001 sent a letter to the Ministry of Law and Justice seeking the introduction of a NOTA option in EVMs and ballot papers. This is to protect voter secrecy as well as allow voters to “express his dissent/disapproval against the contesting candidates and will have the benefit of reducing bogus voting.”

What are the consequences if NOTA Receives the Highest Number of Votes in a Constituency?

Currently, the apex court is considering another petition for elections to be considered “null and void” if NOTA receives the highest number of votes in the constituency.

Shiv Khera, author and the founder of the Country First Foundation, approached the court in April 2024 seeking directions to the ECI to frame guidelines/rules regarding uniform implementation of the NOTA and its  consequences for candidates who do not surpass NOTA.”

As Assistant Solicitor General PP Malhotra pointed out to the court, NOTA has no legal consequence attached to it – even if the highest number of votes in a seat are polled for NOTA, the second most successful candidate wins.

This has never happened (in Lok Sabha elections), but the Indore result, as well as other local body elections, show that it remains a distinct possibility.

The court accepted this reasoning and the suggestion from the ECI’s letter, stating that political parties would be “forced to accept the will of the people and field candidates who are known for their integrity”, and directed the ECI to install a NOTA button in EVMs.

The petition invokes Maharashtra, Haryana, Puducherry, Delhi, and Chandigarh as examples of states and union territories where the State Election Commission passed orders declaring NOTA as a “Fictional Electoral Candidate” in local elections (including elections for panchayats and municipal bodies).

If the votes for NOTA exceed the votes received by all other individual candidates, fresh elections will be held in these states and union territories.

Khera argues that the ECI should frame similar rules for all elections where NOTA gets a majority of the vote.

According to his petition, the introduction of NOTA in 2013 “has not fulfilled its purpose” as it has not led to increased voter participation or political parties fielding good candidates.

NOTA is a “potent weapon in the hands of the voter” and requires “teeth” to put pressure on political parties, according to the petition.

It also states that candidates who poll fewer votes than NOTA should be “debarred from contesting all elections for a period of 5 years” and requests the Supreme Court to direct the ECI to frame rules for this as well.

Conclusion

The unprecedented consequences of NOTA votes in Indore highlight the growing voter discontent. This emphasizes the need for electoral reforms to ensure genuine representation and accountability.