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The story so far:
On April 22, the ruling Bharatiya Janata Party opened its tally in the Lok Sabha when its nominee for the Surat constituency in the western State of Gujarat, Mukesh Dalal, was elected unopposed. This followed the rejection of the nomination papers of the Congress candidates [main and substitute nominees] the previous day and the withdrawal of other nominees. This means Gujarat’s second largest city will not go to the polls on May 7.
How is a candidate declared elected before polling?
Section 53 (3) of the Representation of the People Act, 1951 deals with the procedure in uncontested elections. According to this proviso, if the number of such candidates is less than the number of seats to be filled, the returning officer (RO) shall forthwith declare all such candidates to be elected. In this regard, the RO’s actions are governed by Section 33 of the Act which pertains to the presentation of nomination papers and requirements for a valid nomination.
The sub-section 4 says: “On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls...” In the given instance, three proposers of the Congress’ candidate for Surat, Nilesh Kumbhani, claimed in an affidavit to the district election officer (DEO), Sourabh Pardhi, that they had not signed his nomination form. They did not also turn up before the DEO on April 21 to support the candidate’s nomination form.
Besides, the Handbook for Returning Officers (Edition 2) issued by the Election Commission (EC) in August 2023, in the chapter titled uncontested election, states that “if in any constituency, there is only one contesting candidate, that candidate should be declared to have been duly elected immediately after the last hour for withdrawal of candidature. In that event, a poll is not necessary.” It also says that “all those candidates, who are returned as uncontested and [who] have criminal antecedents, must publicise the details in the prescribed format as per timeline.”
What is the scope for negative voting in the election system?
There is ample scope in the system. While the NOTA (none of the above) option has been in force since 2013, the Conduct of Election Rules, 1961, allows electors to decide not to vote through Rule 49-O. A remark to the effect that the elector has decided not to record his or her vote would have to be made in the “remarks column” against the entry relating to the elector in the Register of Voters by the presiding officer, after which the signature or thumb impression of the elector would have to be obtained against such a remark.
The option of NOTA, introduced through the Supreme Court’s intervention, has been available on electronic voting machines (EVMs) since November 2013. This became a reality in the wake of a verdict given by a Bench of the Supreme Court comprising Chief Justice P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi in September 2013, while allowing a petition filed by the People’s Union for Civil Liberties. The then CJI, who wrote the judgment, said: “Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties.” He expressed the hope that “gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity.”
There is a difference between an elector exercising Rule 49-O and one using the NOTA option. In the case of the former, the likelihood of such an elector compromising his or her secrecy is high, as there is a procedure to be followed manually at a polling booth. However, in the case of the latter, there is no such issue.
But, according to the Handbook for ROs, the NOTA votes are not to be taken into account for calculating the total valid votes polled for the return of the security deposit. The EC’s stand has been that the person getting the largest number of votes in any constituency will still be declared the winner, regardless of the number of NOTA votes.
But, with respect to local bodies’ polls, the situation is different, at least in Maharashtra. Through an order in November 2018, the Maharashtra State Election Commission said that NOTA would be regarded as a fictional electoral candidate for the polls to urban local bodies, and wherever NOTA gets the highest votes, the Commission would go for re-poll.
What are the developments post NOTA?
There have been instances wherein votes obtained by political parties were lower than the NOTA votes. But, a section of activists and constitutional experts has been critical, calling NOTA a “toothless tiger” with no implications on the results, despite the fact that NOTA was reported to have netted over 1.29 crore votes in the State Assembly elections and the Lok Sabha elections combined in the last five years.
On April 26, the Supreme Court, which had in the past refused to direct the EC to hold fresh polls if the majority of the electorate exercised NOTA, asked the poll panel to respond to a plea seeking fresh elections to constituencies where NOTA votes were in majority. The prayer of the petitioner-author Shiv Khera was that the court should direct the EC to frame rules, stating that candidates who polled fewer votes than NOTA should stand debarred from contesting elections for five years.
