The concept of NOTA (None of the Above) has been a subject of ongoing discussion and legal battles in India. The right to vote is a fundamental aspect of democracy, and the ability to express dissent through NOTA is seen by many as an essential part of this right. However, the implementation and impact of NOTA have been contentious issues, as evidenced by two significant cases – People’s Union for Civil Liberties & Anr. vs. Union of India & Anr. and SHIV KHERA Vs THE ELECTION COMMISSION OF INDIA 2024.

People’s Union for Civil Liberties & Anr. vs. Union of India & Anr. (2013)

In this landmark case, the Supreme Court recognized that the decision taken by a voter, either to vote or not, is a form of expression protected under Article 19(1)(a) of the Constitution. The Court held that the fundamental right under Article 19(1)(a), read with the statutory right under Section 79(d) of the Representation of People Act, is violated unreasonably if the right not to vote effectively is denied and secrecy is breached.

The Court emphasized that democracy and free and fair elections are part of the basic structure of the Constitution and necessarily include the right of an elector to cast their vote without fear of reprisal, duress, or coercion. It also stated that the protection of an elector’s identity and affording secrecy is an essential feature of free and fair elections.

How has the use of NOTA evolved since the 2013 Supreme Court ruling

• NOTA was first used in the 2013 Assembly elections in five states – Chhattisgarh, Mizoram, Rajasthan, Delhi, and Madhya Pradesh. It was later used in the 2014 General Elections.
• In the 2014 Lok Sabha elections, NOTA received 1.08% of the total votes cast. This percentage increased slightly to 1.06% in the 2019 Lok Sabha elections.

Declining Vote Share but Decisive Impact

The percentage of voters choosing NOTA (None of the Above) in Indian elections has fluctuated over the years since its introduction in 2013:

• In the first Lok Sabha elections in 2014, after NOTA was introduced, about 1.08% of voters chose this option.
• The percentage of NOTA votes decreased slightly to 1.04% in the 2019 Lok Sabha elections.
• In the 2018 state assembly elections, NOTA’s vote share was 1.41%.
• However, in the recent state assembly elections in Rajasthan, Madhya Pradesh, Chhattisgarh, and Telangana, NOTA’s vote percentage declined to 0.97%.
• In the 2024 Lok Sabha polls in Tamil Nadu, NOTA saw a reversal of the declining trend, with nearly 4.67 lakh voters (1.07%) choosing this option, up from 0.75% in the 2021 state assembly elections.
• NOTA’s vote share varies widely across states, from a high of 2.08% in Assam and Bihar to just 0.65% in Sikkim in the 2019 Lok Sabha polls.
• In the 2014 Lok Sabha elections, the highest NOTA percentages were recorded in Bastar, Chhattisgarh (5.04%), Nilgiris, Tamil Nadu (4.99%) and Nabarangpur, Odisha (4.34%).

So while NOTA’s overall vote share has declined from 1.41% in 2018 to 0.97% in recent state polls, it remains a significant factor in close contests. In the 2024 Tamil Nadu Lok Sabha elections, NOTA bucked the declining trend, indicating its continued relevance as a means for voters to express dissatisfaction with the candidates.

Emerging as a Third Choice

• In some states like Himachal Pradesh, Gujarat, Karnataka, and Andhra Pradesh, NOTA emerged as the third most preferred choice after the main political parties.
• For example, in Himachal Pradesh, NOTA stood third with a 0.57% vote share, surpassing the Bahujan Samaj Party (BSP) candidates’ total votes.

Calls for Reforms

• Despite its impact, NOTA remains a “toothless tiger” with no implications on election results, according to experts.
• Calls have been made to give more teeth to NOTA, such as debarring candidates who poll fewer votes than NOTA from contesting elections for 5 years.
• In 2024, motivational speaker Shiv Khera filed a writ petition in the Supreme Court seeking reforms to NOTA, including mandatory re-election if NOTA wins and proper publicity of NOTA as a “fictional candidate”.

So while NOTA’s vote share has declined, its ability to influence close contests and emerge as a third choice in some states highlights its evolving role in Indian elections. However, its lack of tangible consequences has led to calls for reforms to make it a more effective tool for voter expression and accountability.

SHIV KHERA Vs THE ELECTION COMMISSION OF INDIA 2024

In this recent case, motivational speaker Shiv Khera has filed a writ petition in the Supreme Court against the Election Commission of India (ECI), seeking reforms to the NOTA option in elections. Khera’s plea includes several key points:

1. Seeking Mandatory Re-election if NOTA Wins: Khera seeks directions for the ECI to frame rules stating that if NOTA gets a majority of votes in a constituency, the election shall be declared null and void, and a fresh election shall be conducted.
2. Debarring Candidates Who Lose to NOTA: The plea seeks rules to debar candidates who poll fewer votes than NOTA from contesting elections for 5 years.
3. Proper Publicity of NOTA as a “Fictional Candidate”: Khera wants the ECI to ensure proper and efficient reporting/publicity of NOTA as a “Fictional Candidate”.
4. Uniform Implementation of NOTA Rules: The petitioner urges that what has begun from the Panchayat and Municipal polls in 4 states (Maharashtra, Haryana, Delhi, and Puducherry), where NOTA is treated as a fictional candidate, should be implemented uniformly at all levels.

The plea argues that the ECI has failed to regard NOTA as a valid candidate, which is essential in a democracy, as NOTA is not merely a citizen abstaining from voting but is actually a valid choice. It contends that the purpose of NOTA to increase voter participation has not been fulfilled and can only be achieved if the ECI gives teeth to NOTA.

Conclusion

The debate around NOTA highlights the need for a clear and effective implementation of this option in Indian elections. While the Supreme Court has recognized the importance of NOTA as a form of expression, the practical implications and impact of NOTA on the electoral process remain to be fully addressed.

The cases mentioned above raise important questions about the role of NOTA in ensuring free and fair elections, the rights of voters, and the responsibilities of the Election Commission. As the legal battles continue, it is crucial for policymakers, legal experts, and civil society to engage in a constructive dialogue to find a balanced solution that strengthens democracy and empowers voters.

Ultimately, the success of NOTA in enhancing voter participation and accountability depends on a well-defined legal framework, effective implementation, and a commitment to upholding the principles of free and fair elections enshrined in the Constitution.