Monday, May 17, 2021

Top court seeks EC, Centre opinions on repoll possibility if NOTA wins

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New Delhi The Supreme Court on Monday issued notices to the Centre and the Election Commission of India (ECI) on a public interest litigation (PIL) seeking fresh elections if maximum votes were polled in favour of NOTA (None Of The Above) in a particular constituency.

A bench, headed by Chief Justice of India (CJI) S A Bobde, sought a response from the two parties within four weeks on the PIL filed by Supreme Court advocate and Bharatiya Janata Party (BJP) leader Ashwini Upadhyay.

Representing Upadhyay, senior advocate Maneka Guruswamy submitted before the bench that the petition sought formalization of the voters’ right to reject so that fresh polls could be conducted in such cases.

The bench, which also included justices A S Bopanna and V Ramasubramanian, was initially reluctant to admit the plea. “The problem is that if a political party with sufficient influence on voters (help to) get several candidates rejected, Parliament may not be constituted properly. If several candidates are rejected, those constituencies will go unrepresented. How will you form a proper Parliament then?” it asked.

In her response, the senior counsel said that even the poll panel had recommended for fresh elections in constituencies where NOTA received the maximum number of votes.

“The right to reject and elect a new candidate will give power to the people to express their discontent. If voters are dissatisfied with the background or performance of contesting candidate, they will opt for NOTA (none of the above) to reject such candidate and elect a new candidate,” the petition said.

Guruswamy added that the present situation was untenable since a candidate with just a single vote could still be declared elected even if 99 per cent of the votes were polled in favour of NOTA. NOTA had no real consequences on the results of an election, she said.

“A right to reject will prompt political parties to be more careful in putting up candidates and only those with a clean record would be put up,” she said.

The bench said it found it “difficult to accept an underlying assumption” that the parties did not wish to field such candidates otherwise but agreed, at the same time, to examine the matter.

The petition also cited a 2013 judgment by the apex court which had issued directives to the poll body to introduce NOTA to recognize the voters’ right not to vote and opt for it to express discontent and dissatisfaction.

The PIL sought directions for the ECI to use its plenary power under Article 324 to nullify the election result and hold a fresh round of elections if NOTA received the maximum number of votes in a constituency. It also sought to restrict the candidates who had participated in the polls earlier, from contesting again.

Article 324 in the Indian Constitution gives power to the poll body to direct, control, and conduct elections to all Parliament, to the Legislature of every state and of elections to the offices of the President and Vice President held under the Constitution. It vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.

In the alternative, Upadhyay said that the Centre should be directed to adopt appropriate steps, including suitable amendments in the law, to empower voters with a right to reject with consequences on an election.

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