Supreme Court seeks ECI reply on repolling if NOTA gets majority

Currently, the candidate who receives the second-highest number of votes is declared the winner if Nota garners the most votes in a constituency.

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A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, also agreed to examine whether the polling body should promote and publicise Nota as a "fictional" electoral candidate in elections to raise voter awareness throughout the country.

The bench, which also comprised justices JB Pardiwala and Manoj Misra, however, expressed its reservations on the petitioner's plea that the candidates "rejected" by voters by giving maximum votes to Nota should not be fielded again in the fresh polls.

"How can we do that? That would be a legislative choice. We don't think we can do such a thing," the bench told senior counsel Gopal Sankaranarayanan, who appeared for public interest litigation (PIL) petitioner Shiv Khera in the matter. Khera is a motivational speaker and author based in Delhi.

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Sankaranarayanan emphasised that the petition aims at furthering the Supreme Court's objective of introducing Nota in 2013 and optimising the choice of voters in the democracy. "In Surat, one candidate was declared winner without the necessity of casting votes because there was no other candidate in the fray. Voters did not have a choice," he argued.

Bharatiya Janata Party (BJP) candidate Mukesh Dalal was on Monday elected unopposed from the Surat Lok Sabha seat in Gujarat after all other nominees withdrew from the fray, over a fortnight before the state will vote on May 7 in the third phase of the general elections, making it the first electoral success for any political outfit in the ongoing polls.

Agreeing to examine Khera's petition, the bench issued notice to ECI. "Okay! We will examine this. After all, it's a take-off from what we have done in the past. We will issue notice. This is about the electoral process also. Let us see what election commission has to say on this," the court observed.

In contrast to a negative vote, Nota is neutral and has no numerical value. It is ultimately discounted towards the final total. Despite the Nota option's zero numerical value, the 2013 Supreme Court judgment held that including it "will indeed compel the political parties to nominate a sound candidate". The 2013 judgment added: "Negative voting will lead to a systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject a candidate is a fundamental right of speech and expression under the Constitution."

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The Nota button is at the bottom of the list of candidates on Electronic Voting Machines (EVMs).

Nota received more than 650,000 votes in the general elections of 2019, or 1.06% of the total vote. Fifteen political parties received fewer votes than Nota out of the 36 whose representatives were elected to the 17th Lok Sabha. To be sure, many of these parties contested only a handful of seats.

In 2021, the top court admitted a similar petition by advocate Ashwini Kumar Upadhyay, seeking to empower voters with the "right to reject" and encourage political parties to offer them a more superior selection of candidates. Upadhyay's petition is currently pending in the top court.

Khera's petition highlighted that the "right to reject" was first proposed by the Law Commission in its 170th Report in 1999. The Election Commission twice endorsed "right to reject" -- first in 2001 under then-chief election commission James Lyngdoh, and then in 2004 under then-CEC TS Krishnamurthy, in its Proposed Electoral Reforms. Likewise, the "Background Paper on Electoral Reforms" prepared by the Union ministry of law & justice in 2010 proposed that if a certain percentage of the vote was negative, then election result should be nullified and news election should be held.