Consider Mandating Minimum Vote Share For Unopposed Candidates To Be Declared Winners: Supreme Court Tells Union

The Supreme Court today asked the Union of India to consider bringing in an enabling provision requiring unopposed candidates in elections to secure a minimum percentage of votes before they are declared the winner.

A bench of Justices Surya Kant and N Kotiswar Singh was dealing with a public interest litigation challenging Section 53(2) of the Representation of the People Act ("RP Act"), which provides for direct election of candidates in uncontested elections ie without conduct of a poll. The petitioner claims that the impugned provision(s) deprives voters of the rights to choose 'None of the Above' (NOTA). Notice was issued on the petition in October, 2024.

At the outset of today's hearing, Justice Kant, referring to the Election Commission's counter-affidavit, posed to Senior Advocate Arvind P Datar (for petitioner) that there are only 9 instances where uncontested candidates were declared winners. Datar, however, submitted that there have been many more in the case of State Assemblies. On behalf of the Election Commission, Senior Advocate Rakesh Dwivedi contended that in the last 25 years, there has been only 1 instance at the Parliamentary level.

Subsequently, Datar placed a hypothetical situation before the Court as follows: suppose there are 3-4 candidates contesting, and all but one withdraw nominations on the last date; only 1 candidate is left in the fray who, if undesirable, may not be elected if the option to vote 'NOTA' is available. "Suppose 1 lakh votes are there, if the candidate is known to be undesirable - that is a hypothetical situation - and out of 1 lakh, 10000 people vote for him but 25000 people say none of the above, are they not entitled to [their choice]?" He further underlined the dangers of a situation where 1 candidate uses machineries at the Centre/State level, or otherwise, to ensure that his opponents withdraw.

Finding force in Datar's submissions, Justice Kant said to the respondent-authorities,

"Suppose you address this issue, let's say academically, it will be a very good reform. It's not something that should cause inconvenience to anyone...it's only a question of creating a mechanism which may or may not be utilized ever...keeping the given trend of the changing dimensions in the political field, there is a possibility of some affluent candidate...maybe they pressurize, they may influence, they may persuade...that others those who have filed nomination withdrawn at the last moment and only one candidate remains. Now suddenly the voters know that they have no other choice, except one person. And voters will never get chance to elect because you will have to declare him unopposed, with the present regime. NOTA [has to be] accepted after the judgment of this Court. Here, you are infact helpless and so are the voters...you can have 10%, 15%, 25% voters will be required to vote (for the candidate)...will it not be a very helpful and progressive step where only 1 candidate is left in fray and still you say that you will be declared elected only when you get atleast 10%, 15%, whatever, that's your [prerogative]..."

At this point, Dwivedi urged that these are larger questions for the Parliament to engage in. Highlighting that the Indian democratic system has addressed every challenge in the past, Justice Kant remarked, "Why should we allow someone to enter Parliament in default who is unable to get even 5% votes? It is only an enabling provision you can think of". The judge further opined that if the provision is put in place and the problem arises in future, the poll body would be armed with something to tackle it. 

Justice Kant also expressed that the proposed provision would promote multiple-party culture and strengthen a "healthy democracy". However, Dwivedi commented, "According to our experience, NOTA is a failed idea. It is creating no impact on the elections". Attorney General R Venkataramani concurred with the senior counsel and submitted that if something is desirable, the Court may look into the point of desirability, but it must not strike down a law for that reason.

Hearing the AG, Justice Kant clarified that the Court is not considering striking down of any law. Suggesting that there can be a small expert body to consider such a provision, the judge added, "We are only impressing upon you to add something in the existing [law]". On this, the AG replied that there have possibly been some deliberations and sought time to file a separate counter-affidavit. Granting time, the bench adjourned the matter.

Background

The petitioner has raised a challenge to Section 53(2) of the RP Act as well as to Rule 11 read with Forms 21 and 21B of the Conduct of Election Rules, 1961.

In terms of Section 53(2), if the number of contesting candidates in an election 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. Rule 11 of Conduct Rules, 1961, likewise, deals with declaration of results of an uncontested election in such form [Form 21 (in case it is a general election) or Form 21B (in case it is an election to fill a casual vacancy)] as may be appropriate.

As per the petitioner, these provisions prohibit the returning officer from conducting a poll if the number of contesting candidates is equal or less than the number of seats to be fulfilled, and result in deprivation of a voter's fundamental right to choose 'NOTA' (None of the Above) as an expression of his dissatisfaction with the contesting candidate(s).

"This is a violation of a fundamental right, as in its judgement in People's Union for Civil Liberties v Union of India (2013) 10 SCC 1 this Hon'ble Court has held that the right to cast a negative vote by choosing the NOTA option on an EVM is protected in direct elections under Article 19(1)(a) of the Constitution of India."

In support of the plea, the petitioner points out that a sole candidate from Surat constituency was declared winner in the last Lok Sabha polls, since the election was uncontested. It is further stated that the combined figure of unelected candidates since first Lok Sabha and Assembly elections is 258.

Case Title: VIDHI CENTRE FOR LEGAL POLICY Versus UNION OF INDIA AND ANR., W.P.(C) No. 677/2024