The Supreme Court today issued notice in a public interest litigation challenging Section 53(2) of the Representation of the People Act (“RP Act”), which provides for direct election of candidates in uncontested elections, that is to say without holding a vote.

A bench of Justices Surya Kant and Ujjal Bhuyan placed the order, after hearing Arvind Datar, Senior Advocate, who appeared and argued on behalf of the petitioner-Vidhi Center for Legal Policy.

During the hearing, the bench asked Datar whether the petitioner should also challenge Section 53(3) of the RP Act? For context, while Article 53(2) provides for direct election when the number of candidates contesting is equal the number of seats to be filled, Article 53(3) authorizes direct election when the number of candidates contesting is less than the number of places.

“The analogy of Article 53(2) has also been applied by legislation to Article 53(3)…”, said Judge Kant.

Datar conceded the same, seeking liberty to amend the petition and add a prayer in this regard. Ultimately, the court issued notice of the motion and authorized service on the defendant(s) through the Attorney General’s Office.

In the present petition, the petitioner has challenged Section 53(2) of the RP Act as well as Rule 11 read with Forms 21 and 21B of the Conduct of Elections Rules, 1961.

Under section 53(2), if the number of candidates contesting an election is equal to the number of seats to be filled, the returning officer must immediately declare all such candidates duly elected to fill those seats. Similarly, Rule 11 of the Conduct Rules, 1961 deals with declaration of the results of an uncontested election in that form (Form 21 (in the case of a general election) or Form 21B (in the case of a election to fill a vacant position) as applicable.

According to the petitioner, these provisions prohibit the returning officer from conducting a poll if the number of candidates in the running is equal to or less than the number of seats to be filled, and result in the deprivation of the fundamental right of a voter to choose “NOTA” ( None of the above) to express dissatisfaction with the candidate(s) in the running.

“This is a violation of a fundamental right, as in its judgment in the case of People’s Union for Civil Liberties v. Union of India (2013) 10 SCC 1, this Court held that the right to express a negative vote by choosing the NOTA option on an EVM is protected in direct elections under Article 19(1)(a) of the Constitution of India.

In support of his plea, the petitioner points out that only one candidate from Surat constituency was declared winner in the recent Lok Sabha polls, since the election was not contested. It is further stated that the total number of unsuccessful candidates since the first Lok Sabha and Assembly elections is 258.

Disputes raised

– Section 53(2) of the RP Act is ultra vires the Constitution and is capable of being read attenuated/stripped out to ensure compliance with section 19(1)(a), since a voter was considered to have the right to express a negative opinion. vote;

– After the judgment of PUCL v. Union of India and mandatory incorporation of NOTA option in EVMs, Section 53(2) and Rule 11 have become unreasonable with time;

– The contested Rule, in its effects, unintelligibly distinguished two categories of voters in direct elections: first, those registered in a constituency where the number of candidates is greater than the number of seats to be filled, and secondly, those registered in a constituency where the number of candidates is equal to the number of seats to be filled;

– Uncontested seats are common in state legislatures. In the 2024 elections in Arunachal Pradesh, 10 out of 60 seats were won uncontested;

– The contested provisions do not promote transparency, because in all the constituencies where no voting took place, the participation rate could not be recorded.

In April, the Supreme Court had issued a notice on a petition seeking to declare an election null and void if maximum votes were cast for NOTA.

Case Title: VIDHI CENTER FOR LEGAL POLICY v. UNION OF INDIA AND ANR., WP(C) No. 677/2024