Kartikey Agrawal & Siddhi Mishra

I. Introduction

The Supreme Court has recently issued a notice in a PIL challenging the validity of Section 53(2) of the Representation of Peoples Act, 1951 (“Act”). This section comes into force when the number of contestants equals the number of seats to be filled, meaning only one candidate is contesting from a particular seat. The division bench further suggested that Section 53(3) of the Act should also be challenged on similar grounds. The petitioners have contended that the said provisions violate the right of freedom to vote and deprive voters of exercising None of the above vote system (“NOTA”). This article will focus on uncontested elections and their subsequent violation of the freedom to vote and other rights. It will also throw light upon the concept of NOTA vote. The authors suggest that the problem of such uncontested elections should be solved with the proper implementation of the NOTA vote system.

II. What are uncontested elections?

Uncontested elections refer to a situation where the number of candidates is either equal or less than the number of seats in an election. Sections 53(2) & 53(3) of the Act, deal with a situation where the number of candidates is equal to or less than the seats to be filled respectively. These sections set out the procedure to be followed by the returning officer in such circumstances. 

In a case where Section 53(2) is invoked, the returning officer (“officer”) is required to declare the sole candidate as the winner of the elections. In such a situation where the number of candidates is less than the number of seats, the officer is required to invite the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college to elect a person or persons and fill the remaining seat(s).

Demonstrating the scale of the aforesaid phenomenon, in the recent Lok Sabha elections of 2024, Mukesh Dalal who was the sole candidate in the constituency of Surat was declared the winner. His uncontested victory has been challenged by two petitions in the Gujarat High Court. Similarly, in 2024, 10 seats out of 60 were won uncontested in Arunachal Pradesh. Since the advent of General Elections in 1951, a total of 35 candidates till now have won Lok Sabha polls uncontested.

III. Violation of Citizen’s Rights

The issue arises when one examines the procedure followed during uncontested elections. The freedom to vote is held to be a constitutional right whereas, the right to vote is held as a statutory right across the world. However, once the officer declares a sole candidate as the winner under the said proviso, he effectively takes away the right and freedom to vote, the right to choose among several rights. Democracy is ultimately the result of choices made by the voters, and the essence of electoral democracy should be to ensure that the voters freely exercise their choice.

These provisions undermine the basic roots of democracy by denying the voters their rightful vote of denial. The right to vote along with the right to choose not to vote for any candidate is a vital aspect of the democratic spirit safeguarded by Article 19 of the Constitution of India. Manipur High Court, in its recent judgement, upheld the verbatim notion that a voter’s speech in an election would include the casting of votes. 

The provisions of the Act create an inherent inequality by treating people differently who are living in a constituency where the seats went uncontested. Section 53(2) violates the principle of non-arbitrariness enshrined in Article 14 by creating an arbitrary distinction between the voters in a constituency of contested and uncontested elections. The State is denying the voters the opportunity to exercise their Right to choose and dissent. In the case of Khemchand Rajaram Koshti vs State Of Gujarat, the Hon’ble High Court of Gujarat ruled that an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. 

The right to vote freely also forms the basic liberty of any individual. The term “fair” in free and fair elections denotes equality for all people. Universal Adult Suffrage has enabled individual voters to visit polls and participate in the governance of the country. In the landmark case of People’s Union for Civil Liberties v. Union of India, the Hon’ble Supreme Court ruled that not allowing a person to cast a vote negatively defeats the very freedom of expression and the right ensured in Article 21.

IV. Concept of NOTA Votes

The concept of negative voting was first elaborated by the Law Commission in its 170th Report in 1999, as part of its “alternative method of election” where candidates would only be declared elected if they obtained 50%+1 of all the valid votes cast. The Election Commission of India also supported a similar notion in 2001 in its proposed electoral reforms report wherein they proposed a legislative amendment to Rules 22 and 49-B of the Election Rules to introduce “NOTA” as an option.

Due to inaction on the part of the Legislature, a PIL was filed by PUCL in the Hon’ble Supreme Court, wherein the Court directed the ECI to provide another button in the ballot papers/EVMs known as the “None of the Above” (NOTA) which will be utilised by the people who decide not to vote for any of the candidates in the fray. NOTA is recognized in countries like Spain, Russia, France and Italy. Certain states in the US such as Nevada also allow for negative voting. Thus, India became the 14th country to allow for negative voting.

Regardless of the Hon’ble Court’s order to include NOTA as a choice for the voters. It is often regarded as a “toothless tiger”. The concept of negative voting introduced in the Indian election regime does not possess any noteworthy powers. For instance, even if majority votes are cast in favour of NOTA still the candidates will not be affected. NOTA has no legal consequence attached to it, as even if the highest number of votes in a seat are polled for NOTA, the second most successful candidate wins. In the 2024 Jammu and Kashmir Lok Sabha Polls, despite significant NOTA presence of around 59%, candidates won in Udhampur and Jammu. NOTA was designed and implemented as a symbolic option for voters to express their dissatisfaction with the candidates presented by political parties. It majorly serves as a protest vote rather than a vote for an alternative candidate. Casting a vote for NOTA doesn’t contribute to electing a different candidate, nor does it directly influence the mechanics of governance. Instead, it merely underscores the existence of voter dissatisfaction within the structure of the election process. 

V. Solving the Problem

Seeing that NOTA is merely a “toothless tiger”, efforts should be made to strengthen the legal position of NOTA. Right to Reject must be incorporated into the current election framework wherein NOTA was only enacted to ensure the secrecy of the voter casting a negative vote and to prevent a bogus vote in their place. The right to reject and elect new candidates will empower the people and accelerate their participation since they can now abstain and register their discontent against incompetent candidates without fear of reprisal. However, the authors also note that NOTA is currently not implemented in a manner that will facilitate the proper exercise of the above-mentioned rights.

The reason for its inept implementation can be attributed briefly to the legislature’s intent. The system of NOTA votes will cause political hardships such as recalling of elections, re-elections and exclusion of the existing fray of candidates. Around the world, only Columbia undertakes a full-fledged enforcement of the NOTA vote system in their electoral process. Another factor that should be considered is that the ECI’s mandate behind introducing NOTA was to facilitate the voters who wished to poll blank votes. Therefore, the protection of voter’s privacy was given due attention.

Even so, the NOTA does not possess any electoral value, it can be utilized to preserve the rights of citizens in constituencies which fall under the scope of Section 53(2) of the Act. By forcing a thorough implementation of the NOTA, voters will be able to exercise their rights to vote and deny. Additionally, if the sole candidate fails to garner more votes than NOTA then the elections should be set aside and re-elections should be held. This should also mean that the sole candidate cannot contest either in the ensuing elections or till the passage of a certain period.

Similarly, for constituencies falling under Section 53(3) of the Act ECI should directly hold re-elections instead of inviting incumbent elected representatives to choose a candidate. Voters are denied the opportunity to exercise their right to vote under these circumstances without any fault of their own.

VI. Global and National Precedents supporting NOTA Empowerment

The Ministry of Law prepared a ‘Background Paper on Electoral Reforms’ in 2010, proposing that if a certain percentage of the vote is negative, then election results should be nullified and a new election should be held. Besides in Columbia, if the blank or negative vote gets a majority, the election is held once again and the candidates, who had participated in the invalidated election cannot contest the next election. 

A prospective solution to this problem could be implementing the 50%+1 rule, wherein if 51% of the total valid votes cast are in favour of NOTA, then the election must be repeated and the earlier candidates cannot compete in the election again, this provision is currently in force in Columbia. This will provide the requisite powers to NOTA which is currently a mute spectator in the political regime.

Similarly, states like Maharashtra and Haryana have also made NOTA a “Fictional Electoral Candidate”, meaning that re-elections are to be held if NOTA gets the majority.

VII. Conclusion and Suggestions

Uncontested Elections strike at the heart of democracy and undermine the very basic principles of democracy, effectively depriving the citizens of their right to participate in the electoral process. The prevalence of such elections coupled with the impugned provisions of Sections 53(2) and 53(3), exacerbates the problem. The introduction of NOTA was a significant step towards covering this gap, however, in its current form NOTA fails to change the status quo. To address these concerns, the authors propose some measures such as;

Empowering NOTA with legal consequences, if in a constituency majority of voters opt for NOTA, the election should be nullified and re-election must be organized. This must be done in constituencies covered within the scope of impugned sections as a short-term solution. The government must aim at giving NOTA its full force.

Furthermore, the previous candidates should be barred from contesting the elections again. This would encourage the parties to nominate competent candidates and take into consideration voter’s disaffection.

Amending the provisions of the Act, the impugned provisions must be amended so as to deny automatic victory for the sole candidate and provide voters the opportunity to cast their votes.

For voter campaigns and education, the ECI in collaboration with the government should conduct campaigns to educate the voters about NOTA and their right to reject.

The prevalence of uncontested elections and the ineffectiveness of NOTA show significant flaws in India’s electoral structure. Addressing these concerns demands significant legislative and institutional reforms motivated by a desire to protect citizens’ democratic rights. By providing voters with meaningful options and reaffirming their right to refuse, India can improve its democratic fabric and ensure equitable representation for all constituencies.

Kartikey Agrawal and Siddhi Mishra are second-year B.A. LL.B. (Hons.) students at National Law Institute University, Bhopal.