NOTA as a ‘fictional candidate’ (2/2): Analysing the legal tenability of the SEC Order

Aditya Prasanna Bhattacharya

The Maharashtra State Election Commission’s bold decision to expand the scope of NOTA, thus bolstering the ‘right to reject’, strengthens democratic values, but has no legal basis in India

NOTA 2 image.jpg

For a thorough understanding of the evolution of NOTA in India, read the first post of this series, which serves as a primer.

The Order of the Maharashtra SEC

To recap from the first post, the 9 November Order of the Maharashtra State Election Commission (‘SEC’) contemplates ‘NOTA’ as a ‘Fictional Electoral Candidate’ (Clause 12.1 (i)) and states that if NOTA receives a higher number of votes than any other individual candidate, then none of those candidates will be declared as elected, and fresh elections will have to be conducted for that post (Clause 12.1(ii)).

The Order provides a useful platform for analysis, as the directions are accompanied by a detailed reasoning that has seemingly led the SEC to take this step. We must first ask why this move was necessary. From a bare reading of the Order, it is clear that the SEC has taken this decision to “give effect to the judgment of Hon’ble Supreme Court [PUCL v UOI] fully in letter and spirit” (Clause 10(i)). With this in mind, 2 key lines of enquiry must be pursued:

  1. First, whether treating NOTA as a fictional candidate was in the contemplation of the Supreme Court while deciding PUCL v Union of India (‘PUCL case’); and
  2. Second, whether the SEC has the competence to issue this Order.

 Each issue has been dealt with in order.

Issue No. 1: Whether the intent to treat NOTA as a ‘Fictional Electoral Candidate’ can be read in PUCL v Union of India

This question is designed to test the premise of the SEC Order, which locates its need in the failure to implement the direction of the Supreme Court (‘SC’) in the PUCL case. Preliminarily, it may be noted that these directions are not binding on the SEC at all, as the SC directed only the ECI to add the NOTA button on its EVMs. However, this is a weak argument since most SECs implemented the directions anyway. This includes the Maharashtra SEC, which added the NOTA button on its EVMs through an Order issued in November 2013. In any case, the fact that the PUCL decision is not binding on SECs does not imply that the SEC is barred from following the directions in the verdict.

The more compelling argument is that the PUCL verdict did not contemplate treating NOTA as a ‘fictional candidate’ at all. It is my contention that the decision only holds authority in as far as maintaining the secrecy of the NOTA vote is concerned.

(a) Summary of the arguments & the decision

The challenge in the petition was against the constitutionality of certain provisions in the Conduct of Election Rules, “to the extent that these provisions violate the secrecy of voting which is fundamental to the free and fair elections” (¶1). The petitioners contended that the impugned provisions, “to the extent of such violation of the right to secrecy, are not only ultra vires the said Rules but also violative of Articles 19(1)(a) and 21 of the Constitution of India besides International Covenants” (¶2). Apart from having the provisions declared unconstitutional, the petitioners “prayed for a direction to the Election Commission of India…to provide necessary provision…for the protection of the right of not to vote in order to keep the exercise of such right a secret” (¶3).

The counsels appearing for the parties, i.e., the petitioners, the Union Government, and the ECI, all argued for or against the secrecy of the NOTA vote. The final decision of the Court can be divided into the following 4 components:

  1. The writ petition is maintainable under Art. 32 because: first, the decision to vote or not to vote comes under the ambit of Art. 19(1)(a); and second, the distinction between the voter who casts a vote and who does not, in terms of secrecy of the ballot, is violative of Art. 14.
  2. The secrecy of the ballot is a duly recognised principle in the system of constituency-based representation. This is because if ballots are open (not secret), elections cannot be free and fair, as there is a possibility of bribery and post-poll victimisation/reprisal.
  3. The positive right not to vote for any of the listed candidates is “part of expression of a voter in a parliamentary democracy and it has to be recognized and given effect to in the same manner as ‘right to vote’”. The
  4. In light of the above principles, the Court struck down the offending provisions, and directed the ECI to add a NOTA button to its EVMs.

(b)’ The right not to vote’ versus the’ right to vote for NOTA’

It must be noted that the Court saw NOTA as the ‘right not to vote’, as opposed to the right to vote for a ‘fictional candidate’, and issued directions to protect the secrecy of this right. This is crucial, as the ‘right not to vote’ is seen by the Court as a form of active abstinence, wherein the voter is making her way to the polling station, but refusing to register her vote for any of the candidates. This interpretation finds support in the judgment itself, when the Court draws a parallel to the voting machines used in Parliament:

¶57: “…the voting machines in the Parliament have three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote.”

Thus, when the SC contemplated the NOTA button, it had in mind a system where a voter is not voting for NOTA, but simply refusing to vote for any of the listed candidates. If the SEC Order is ignored, then there is very little difference in function between the two. But with the SEC Order in mind, the difference in both form and function is stark.

(c) The ratio decidendi of the judgment does not support the Order

The pith & substance of the judgment can be summed up by reference to ¶46: “In order to protect the…“right not to vote”, we are of the view that this Court is competent…to issue directions that secrecy of a voter who decides not to cast his vote has to be protected in the same manner as the Statute has protected the right of a voter who decides to cast his vote in favour of a candidate.” The verdict thus hinges on the need to protect the secrecy of the ballot, irrespective of whether the voter casts a positive vote, or refuses to do so.

However, the  SEC has failed to appreciate the true ratio of the case. In Clause 5 of the Order, it has relied on 3 different points which it felt motivated the Court, none of which formed the basis of the decision:

(a) increased  voter participation

 (b) compulsion on political parties to field good candidate (sic); and

 (c) reflection of negative votes in election result.”

Interestingly, the first two points can be found only towards the end of the judgment, in the obiter dictum(¶¶50, 51). The third point, i.e., “reflection of negative votes” cannot be found in the judgment at all.

Therefore, the ‘right to reject’, as it is being called, cannot be found in PUCL case. To claim that the Order of the Maharashtra SEC gives effect to the judgment is to side-step the ratio decidendi and rely on the obiter dictum at best, and to do a patent disservice to a landmark judgment at worst.

Issue No. 2: Whether the SEC has the competence to issue this Order

In the Order itself, the SEC has laid out its competence to issue this Order. It has explained that treating NOTA as a fictional electoral candidate is well within its mandate. This claim must be made subject to closer scrutiny.

At the very onset, we must note that the competence of an SEC, and not that of the Election Commission of India (‘ECI’), is being analysed here. While the latter owes its existence to Art. 324 of the Constitution, SECs were brought into existence by Arts. 243K and 243ZA, for conducting elections to Panchayats and Municipalities respectively.

(a) Powers of the SEC

There is no dearth of case law with respect to the ECI’s powers. But to understand the SEC’s powers, we must refer to Kishan Singh Tomar v Municipal Corporation of the City of Ahmedabad((2006) 8 SCC 352)which holds the field as far as the powers of the SEC is concerned. As per this decision, SECs have the same powers, and are by corollary, subject to the same limitations as the ECI. The following excerpts from the judgment are relevant:

In terms of Article 243 K and Article 243 ZA (1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision.”

The words, ‘superintendence, direction and control’ as well as ‘conduct of elections’ have been held in the “broadest of terms” by this Court in several decisions including in Re : Special Reference No. 1 of 2002 (2002) 8 SCC 237 and Mohinder Singh Gill’s case (1978) 1 SCC 405 and the question is whether this is equally relevant in respect of the powers of the State Election Commission as well.”

“From the reading of the said provisions, it is clear that the powers of the State Election Commission in respect of the conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by State Legislatures provided the same do not encroach upon the plenary powers of the said Election Commissions.”

From a perusal of these excerpts, 2 things become clear:

  1. First, that the powers of the ECI in matters of “superintendence, direction, and control” and “conduct of elections” are to be interpreted in a broad manner.
  2. Second, that the powers of the SEC are “no less” than those of the ECI.

It follows logically that in matters of “conduct of elections”, the powers of the SEC are broad. This is relevant, as the Order was issued by the Maharashtra SEC in pursuance of its power under Arts. 243K and 243ZA of the Constitution.

(b) Limitations on the powers of the SEC (the AC JoseGuidelines)

Now, to determine whether the SEC was competent to issue the Order, we must look at the limitations on the powers of the SEC. To do this, we simply have to refer to the limitations on the powers of the ECI. On this issue, the field is held by A.C. Jose v Sivan Pillai & Ors. (1984 SCR(3) 74).

The central issue before the Court was the validity of an Order issued by the ECI which allowed the use of EVMs in certain polling stations. The petitioner challenged the competence of the ECI to issue such an Order, contending that the RPA and the Conduct of Election Rules did not permit voting by mechanical processes (the Conduct of Election Rules recognised voting through EVMs only after an amendment in 1992. ) The Court held:

In these circumstances, therefore, we are constrained to hold that the word ‘ballot’ in its strict sense would not include voting by the use of voting machines.

…we are clearly of the opinion that according to the law as it stands at present, the order of the Commission directing casting of ballot by machines in some of the polling stations, as indicated above, was without jurisdiction and could not have been resorted to.

The Court thus invalidated the votes in all polling stations where EVMs were used, and ordered fresh elections to be held in those polling stations.

Finally, the Court helpfully summed up the “legal and constitutional position” as follows:

(a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections.

(b) where there is an Act and express Rules made thereunder it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules.In other words, the powers of the Commission are meant to supplement rather than supplant the law(both statute and Rules) in the matter of superintendence, direction and control as provided by Art. 324, (emphasis supplied)

(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Art. 324 to give any direction in respect of the conduct of election, and

(d) where a particular direction by the Commission is submitted to the government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given.”

(c) Analysis of legal competence of the SEC

  1. The Mumbai Municipal Corporation Act

As has been explained above, the limitations on the ECI will be applicable in pari materia to the SECs as well. Now, the Act that is applicable to the ward elections in question is the Mumbai Municipal Corporation Act, 1888(‘Act’). Needless to say, the principle that we have to use is: if this Act explicitly provides for a certain course of action, then the SEC cannot override the same by way of an Order and provide for a different course of action. If this happens, it may be considered to be supplanting the law, as opposed to supplementing it, thus being violative of the guidelines laid down in the AC Jose case.

  1. The Act does not contemplate ‘fictional candidates’

With respect to contested ward elections, Sec. 28(g) of the Act provides: “the person who has the greatest number of valid votes shall be deemed to be elected” (The word ‘person’ has been used interchangeably with ‘candidate’ in this legislation).

 This provision is fairly straightforward, and even when NOTA has the highest number of votes, it would direct that the person (candidate) with the highest number of valid votes be elected. So for the Order to cancel the elections in such a situation, and call for fresh polls seems to be violative of this provision.

To get around this, the Order treats NOTA as a ‘fictional candidate’. This seems to take care of the Sec. 28(g) issue, as NOTA will now be the “person” (candidate) who has won the “greatest number of valid votes”. To determine whether this is permissible, we need to see who is permitted to be a candidate under the Act, and whether NOTA can fit under these parameters.

The required qualifications of person who seeks election are dealt with under Chapter II of the Act. Sec. 14 states: “A person shall not be qualified to be elected at a ward election to be a councilor (sic) (unless he is not less than twenty-one years of age on the last date fixed for making nominations for any general election or bye-election and is enrolled in the municipal election roll as a voter of some ward.”

Further, Sec. 26 states: “Candidates for elections at ward elections must be duly nominated in writing in accordance with the provisions hereinafter contained.” The provisions after this lay down the requirements of a valid nomination in great detail (for eg. name & address of the candidate, signature of the candidate and of a proposer and a seconder, etc.).

It is reasonably clear that the Act in question contemplates only a human candidate, in other words, the Act is not “silent” about the requirements which constitute a valid candidate. Treating NOTA as a candidate is therefore not within the powers of the SEC, as it would amount to a violation of the law laid down in the Act.

  1. Lack of an express bar still leads to ‘supplanting’ the law

The argument that a ‘fictional candidate’ is not expressly barred by the Act, and therefore it would merely amount to ‘supplementing’ the law, is an attractive one. But it is effectively countered by a perusal of the decision in AC Jose. As has already been mentioned, in that case, elections conducted using EVMs were declared invalid, even though the Conduct of Election Rules did not expressly bar such machines. The Rules contemplated only paper ballots, and so the Order of the ECI permitting the use of EVMs was declared invalid, as it amounted to supplanting the law.

In the instant case, the Act contemplates only human candidates, and so using the ratio of AC Jose, the SEC is not competent to issue an Order which contemplates a different kind of candidate, i.e., a fictional candidate. As was held in AC Jose, the legislation in question needs to be suitably amended to rectify the vires of the offending Order. The irony in the SEC’s use of the AC Jose case to support its Order (Clause 8.1) should not be lost.

  1. That the Order strengthens democratic values is no defence

There is another policy-based argument to be made in support of NOTA being treated as a ‘fictional candidate’: that it advances democratic values. However, another simple reference to AC Jose will be enough to reject this argument. The respondent, in that case, had pointed out the advantages of using EVMs, the use of which would “eliminate a number of drawbacks” and enhance the democratic process of voting. But the Court rejected this contention, choosing to reserve the question of advantages of using EVMs for the consideration of the Legislature/Government. The Court held that since the ECI did not have jurisdiction to issue such an Order, the advantages that flowed from such an Order did not matter. Similarly, in this case, the fact that treating NOTA as a fictional candidate and calling for fresh elections strengthens democratic values is not enough. Without an amendment to the Act, the scheme contemplated by the Order cannot be permissible.


 To sum up, it cannot be said that the SEC Order has given full effect to the directions of the Supreme Court in the PUCL case. At best, it can be said that the Order has taken NOTA a step further. As has been explained, however, the Order exceeds the jurisdiction of the SEC as it amounts to supplanting the law that is laid down. Only an amendment to the Mumbai Municipal Corporation Act, 1888 can allow the SEC to treat NOTA as a fictional candidate.

In addition to these principled arguments, one must also question the extent to which this scheme will achieve its promised goals. According to Clause 12.1(vi), if in the re-election, the same result is repeated (i.e. NOTA gets the highest number of votes), then a fresh election will not be held for the second time. Excluding NOTA, the candidate with the highest number of votes will be declared elected. Further, the candidates who were rejected by the voters in the first election are not barred from filing nomination papers in the fresh election. Given this structure, it is hard to see how this Order has anything more than some demonstrative value. It is highly doubtful whether this move will compel political parties to field better candidates.

Image Source: Times of India

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