Provision of the RP Act that allows the election of uncontested candidates challenged in the Supreme Court

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

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

During the hearing, the court raised with 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 in competition the same the number of seats to be filled, Section 53(3) allows direct election when the number of candidates in contest is less than the number of seats.

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

Datar granted the same, seeking liberty to amend the petition and add a prayer to that effect. Ultimately, the court issued notice of the petition and permitted service on the respondents through the attorney general’s office.

In the present petition, the petitioner has raised a challenge to 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.

Pursuant to section 53(2), if the number of candidates contesting an election is equal to the number of seats to be filled, the Returning Officer shall forthwith declare all such candidates duly elected to fill these seats Rule 11 of the Rules of Conduct, 1961, similarly deals with the declaration of the results of an uncontested election in this form (Form 21 (in case it is a general election) or Form 21B (in case which is an election to fill an occasional vacancy) as appropriate.

According to the petitioner, these provisions prohibit the Returning Officer from holding a vote if the number of candidates in the contest is equal to or less than the number of seats to be filled and result in disenfranchisement fundamental of the voter to choose “NOTE” (None of the above) as an expression of their dissatisfaction with the competing candidate/s.

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

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

Allegations raised

– Article 53(2) of the RP Law is ultra vires the Constitution and can be read or annulled to ensure compliance with Article 19(1)(a), since it has been considered that a voter has the right to cast a negative vote. to vote;

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

– The challenged Rule, in its effects, has unintelligibly distinguished two classes of voters in a direct election: firstly, those registered in an electoral district where the number of candidates is greater than the number of seats in cover, and secondly, those registered in an electoral district. a constituency where the number of candidates is equal to the number of seats to be filled;

– Uncontested seats are a common occurrence in state legislative assemblies. In the 2024 Arunachal Pradesh election, 10/60 seats were won uncontested;

– The disputed provisions do not bring more transparency, since in all constituencies where no votes were cast, electoral participation could not be registered.

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

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