SC notices ECI after plea claims RP Act provision prevents choosing NOTA

The Supreme Court on Monday sought responses from the Centre and Election Commission of India (ECI) on a plea challenging a provision of the Representation of the People Act, 1951, claiming it prevents voters from choosing the "none of the above" (NOTA) option if there was only one candidate.

The plea, which came up for hearing before a bench of Justices Surya Kant and Ujjal Bhuyan, challenged Section 53 (2) of the Act.

Section 53 deals with procedure in contested and uncontested elections and Section 53 (2) says if the number of contesting candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats.

The apex court issued notices to the Centre and the ECI seeking their responses on the petition.

Senior advocate Arvind Datar along with advocate Harsh Parashar appeared for petitioner legal think-tank Vidhi Centre for Legal Policy.

The plea further sought that Rule 11 read with Forms 21 and 21B of the Conduct of Election Rules, 1961, be struck down.

Rule 11 of the 1961 Rules deals with the publication of a list of contesting candidates and declaration of results in uncontested elections.

"In direct elections (elections to the House of the People and State Legislative Assemblies) which are uncontested, the impugned sub-section (2) prevents voters from being able to cast a 'negative vote' by choosing the 'none of the above' option if there is only one candidate," the plea argued.

It said since 1952, over 82 lakh voters have been deprived of the opportunity to exercise their franchise in elections to the House of the People owing to the operation of the sub-section.

"The impugned section 53(2) of the Representation of the People Act, 1951, in as much as it prevents voters from exercising their right to choose the NOTA option in direct elections which are uncontested, is ultra vires the Constitution, and is liable to be read down or struck down to ensure conformity with the same," the plea said.

It referred to a judgement of the apex court which says the right of a voter to cast a negative vote in an election by pressing "NOTA" on the EVM was a part of their fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

The plea referred to another top court verdict clarifying this right extends only to direct elections which are constituency-based and not to indirect elections, which are based on proportional representation.