India is presently in the midst of a fiercely contested election season as five states are undergoing crucial polls to their Legislative Assemblies. In the political fanfare around these elections, an important electoral reform introduced in Maharashtra has escaped national attention. On November 6, the Maharashtra State Election Commission issued an order stating that if the None of the Above or NOTA option receives the maximum votes in a constituency, then none of the contesting candidates will be declared the winner and fresh elections will be held. This is a landmark order that transforms the very nature of NOTA five years after it was first introduced by the Supreme Court.

The order of the Maharashtra State Election Commission is applicable for all panchayats and municipalities in the state, and will come into effect in the elections to the Ahmednagar and Dhule municipal corporations, scheduled for December 9. Maharashtra has boldly taken the NOTA idea further, but will the move withstand legal scrutiny? In fact, about two weeks after the Maharashtra announcement, on November 22, the Haryana State Election Commission also declared that it would treat NOTA as a “fictional election candidate” for the December 16 municipal elections in the state and that re-elections will be held if it garnered the most votes.

While the Election Commission of India is responsible for conducting elections to the Parliament and state Assemblies, state election commissions conduct the elections to rural and urban local bodies in each state. The 2013 Supreme Court judgement that mandated the use of NOTA had given directions only to the Election Commission of India, and hence the use of NOTA in local body elections has been inconsistent. However, with its latest order, the Maharashtra state election commission has taken NOTA a step further than what the Supreme Court and Election Commission of India provide for.

NOTA by numbers

On September 27, 2013, the Supreme Court in People’s Union for Civil Liberties vs Union of India held that the right to vote negatively is a fundamental right, but did not institute a “right to reject”. Following this judgment, the Election Commission of India clarified that even if the NOTA option receives the highest number of votes, the candidate who secures the most votes shall be declared the winner. The Maharashtra state election commission also issued a similar order. However, in its latest order on November 6, it states that the NOTA option be treated as a “fictional electoral candidate” and if all candidates individually receive fewer votes than NOTA, fresh elections shall be held.

Since the introduction of NOTA in India in 2013, it has been used sparingly in varying degrees in the Lok Sabha and Assembly elections. In the 2014 Parliamentary elections, the overall percentage of votes secured by NOTA was 1.8% of the total votes cast. In case of Assembly elections, the percentage of NOTA votes has ranged from a minimum of 0.43% (in Haryana) to a maximum of 3.06% (in Chhattisgarh). Analysis of NOTA voting patterns across elections reveal that constituencies reserved for Scheduled Castes and Scheduled Tribes, and those affected by left-wing extremism show more of an inclination to choose NOTA.

Though the Parliamentary and Assembly elections receive most attention, a measure like NOTA is most relevant for local body elections, given its smaller constituencies. In the 2017 elections to municipal corporations in Maharashtra, the overall vote share of NOTA was 2.48%, ranging from 1.61% (in the Akola municipal corporation) to 4.58% (in the Ulhasnagar municipal corporation). NOTA also secured 1.46% votes in the municipal council elections held in Maharashtra in 2016-’17. Reports have indicated that the Maharashtra state election commission found many instances where NOTA got more votes than all contestants: In the Bori gram panchayat in Pune district, NOTA polled 85.57% votes. In Khugaon Khurd in Nanded district, while NOTA received 627 votes, the sarpanch only received 120 votes.

Instituting electoral dissent

The Maharashtra state election commission, in its order, has not cited any data regarding the use of NOTA in local body elections to justify its decision to hold re-elections in cases where NOTA receives the most votes. The data available in the public domain is at the municipality level and not at the ward level. Hence, there is no clarity about the number of instances where NOTA got more votes than all candidates in an electoral constituency. While the state election commission order is commonsensical, if it had also provided data regarding the use of NOTA, it would have been a more reasoned decision.

The legal basis of the order also stands on weak footing. The state election commission justified its order stating that the way NOTA has been implemented had not given “full effect” to the 2013 Supreme Court judgment since it did not succeed in realising its stated goals like increased voter participation and better electoral candidates. However, the scope of the Supreme Court judgment was quite limited as it only ensured a voter’s right to not vote for any candidate in secrecy. The state election commission further justified its decision by stating that in the absence of laws or rules regarding NOTA in local elections, it is using its plenary powers to fill a vacant space. However, the question remains whether it has exceeded its ambit in introducing an electoral reform neither provided by law nor by the Supreme Court or the Election Commission of India.

In any case, the move by the Maharashtra state election commission is a bold reform that could be a trailblazer for other state election commissions as well as the Election Commission of India. The Maharashtra order, however, still does not institute a “right to reject” as they allow the losing candidates to contest the re-election. If NOTA receives the highest number of votes even in the second round, the candidate with the most votes shall be declared the winner. It is not possible to enact a more radical reform because NOTA has no statutory basis and instead relies on a directive by the Supreme Court, which interpreted certain provisions of the Conduct of Election Rules, 1961. If electoral reforms like NOTA need to be instituted in a robust manner, it needs to be statutorily entrenched in the Representation of People’s Act, 1951. Until then, institutions like courts and election commissions will initiate innovations that test the limits of their jurisdiction.

Mathew Idiculla is a research consultant with the Centre for Law and Policy Research, Bengaluru. Maya Roy is an independent researcher based in Goa.