The Supreme Court on Thursday sought to know whether it can be laid down in the election law to mandate a certain percentage of votes even when there is only one candidate in the fray for declaring him/her elected.
“Will it not be a very welcome and progressive step where only one candidate is left in free [fray] and still you say that you will be declared election [elected] only when you get at least 10%, 15% (votes), whatever…,” Justice Surya Kant presiding over a two-judge bench asked the Centre and the Election Commission of India.
“Our Constitution, and we salute it, is one of the most dynamic… It says that democracy by majority… So when we talk of the majority as the foundation stone of the democracy, why not in furtherance of achieving that very goal, we prescribe that even in a default direction, there should be at least some voters who are liking you,” Justice Kant said.
The bench, also comprising Justice N K Singh, was hearing a plea by ‘Vidhi Centre for Legal Policy’, praying that section 53(2) of The Representation of the People Act, 1951, in so far as it applies to direct elections to Lok Sabha and state assemblies be read down or struck down as unconstitutional. The provision says that in case of an uncontested election, the Election Commission shall declare the only existing candidate as the winner forthwith without holding an election.
Appearing for the think tank, Senior Advocate Arvind Datar referred to a hypothetical situation where 3-4 candidates file nominations from a constituency and all except one withdraw on the last day. He said if there are 1 lakh voters in the constituency of whom 10,000 want to vote for the candidate but 25,000 people want to vote NOTA, should they be not entitled to do so?
Contesting his submission, Senior Advocate Rakesh Dwivedi said that in the last 25 years, there’s only one case where an election was uncontested. “Otherwise it’s always contested”.
Datar said he is only flagging the potential danger because there can be situations where a candidate may get others to withdraw so that he or she emerges victorious.
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Justice Kant said that even treating it academically, “it will be a very good reform… It’s not something that should cause any inconvenience to anyone.”
Justice Kant said, “NOTA you have accepted, after the judgment of this court, as expressing the will by a voter. But here, you are in fact helpless… so are the voters. This situation may arise, may not arise. But in case, if you have a proposal like this that where eventually more than one candidate files nomination and at the last moment, the other candidates would go and there is only one candidate left, then at least say you can say…10%, 15%, 25 % voters will be required to vote for it.”
Dwivedi said that the NOTA judgement was convenient to implement, adding, “that’s a larger reform where even in general elections, one may say unless you get 50% of the electorate, you can’t win. That’s a larger question which Parliament will have to engage in.” Justice Kant said, “You may be right to say that you are governed by the parliamentary law…We are only saying today you please examine… because after all our democratic system has addressed every challenge and every Indian feels proud of that.”
The judge said, “today you don’t have a problem. But you can enact something visualising that if tomorrow this problem comes, I have a weapon ready to address it. That’s all. What can be that, it’s your wisdom, if Parliament will decide…Why should we allow somebody to enter Parliament by default who is unable to get even 5% vote? You may think of that because you are representing the will of the people.”
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Justice Kant said it will also ensure that the entire constituency will be better represented and promote multi-party culture. Dwivedi said that “according to our experience, NOTA is a failed idea. It is creating no impact on the elections. It may be a case where some candidates get less than NOTA, but the winning candidates are never impacted by it.”
Appearing for the Centre, Attorney General R Venkataramani said he agreed with Dwividi’s submissions and said: “If something is desirable then the court will look at the point of desirability but you can’t strike down a law for that reason.”
Justice Surya Kant said the court is not thinking of striking down anything but only adding a proviso. “We are not considering striking down anything. We are only impressing upon you to add something in the existing law.”
The AG said that “even on that it has to be some deliberations elsewhere…”
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The Court agreed that more deliberations would be necessary and gave the Centre four weeks to file its response. The SC will hear the matter again in July this year.
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