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Supreme Court Bench led by Chief Justice S.A. Bobde issued notice to Election Commission in a PIL seeking fresh election where maximum votes fall in the favour of None of The Above (“NOTA”).

In the matter of Ashwini Kumar Upadhyay v. Union of India, the Top Court remarked that the issue raised is a ‘Constitutional Problem’, however, if the submissions of the petitioner were to be accepted the Constituency would go completely unrepresented. Learned Senior Counsel, Ms. Guruswamy submitted that there should be ‘Right to Reject’ vested with the voters, and that the appropriate authorities were approached earlier but no reply has been received with respect to the same.

“Democracy is all about choice and voting constitutes its very essence but non-participation in election causes frustration and disinterest. Therefore, electors must have the option of rejecting the contesting candidates and elect a new candidate. The right to reject and elect new candidates will empower the people and accelerate their participation since they could abstain and register their discontent with low quality candidates without fear of reprisal,” the plea states.

“Right to Reject'' was first proposed by the Law Commission in its 170th Report in 1999. It also suggested that the contesting candidates should be declared elected only if they have obtained 50%+1 of the valid votes cast. Similarly, the Election Commission endorsed ‘Right to Reject’, first in 2001 under Mr. James Lyngdoh (the then CEC) and then in 2004 under Mr. TS Krishnamurthy (the then CEC), in its Proposed Electoral Reforms. The ECI also proposed a legislative amendment to Rule 22 and 49-B of the Election Rules to introduce the NOTA and protect secrecy of voting. Likewise, ‘Background Paper on Electoral Reforms’ prepared by the Ministry of Law in 2010 proposed that if a certain percentage of the vote is negative, then the election result should be nullified and a new election should be held.”

Reference is also drawn to the PIL filed earlier on the said issue by Union for Civil Liberties in 2004 and in 2013, wherein the Top Court noted that voters should have the option of rejecting all candidates standing for elections in their constituency and issued directions to the ECI to include the option of NOTA in all Electronic Voting Machines. 

The petition further states how the present system of NOTA is not the same as ‘Right to Reject’; “even if there are 99 votes cast in favour of NOTA out of a total 100, the candidate who got only vote will be declared the winner, for having obtained the most number of valid votes.”

Case Title: Ashwini Kumar Upadhyay v. Union of India | WP (C) No 1334 of 2020