NOTA case

Also called: PUCL v. Union of India (2013) · Topic: Elections and the Electoral System · NCERT: Beyond NCERT

Meaning

The NOTA case, PUCL v. Union of India (27 September 2013), is the Supreme Court judgment that says a voter has the right to reject every candidate in secret. The Court said this right is part of the freedom of voting, which comes from the freedom of expression under Article 19(1)(a), and it ordered a None of the Above (NOTA) button on EVMs. The case gave voters a secret way to protest without staying home. It also clarified that NOTA protects secrecy. It does not give voters a "right to reject" that can cancel an election.

Explanation

The problem before 2013: Rule 49-O

• Rule 49-O of the Conduct of Election Rules, 1961 let a voter "decline to vote" (refuse to vote for anyone after coming to the booth).
• How it worked:
• the voter told the polling officer that they did not want to vote for anyone;

• the officer wrote this down in the register of voters (Form 17A).

• Why this was a problem:

• the polling staff, and possibly others, could know the voter's choice;
• so the choice was not secret, even though every other vote is cast in secret.

What the Court decided

• Secret rejection is part of voting freedom:
• Voting is a way of expressing yourself, so it is covered by Article 19(1)(a).
• Choosing to reject all candidates is also a form of expression.

• It must be as secret as a vote for a candidate.

• What was struck down: the parts of Rules 41(2), 41(3) and 49-O that broke secrecy.

• What was ordered: a NOTA button on EVMs, so a voter can reject all candidates without anyone knowing.
• What the Court hoped for: NOTA would push parties to put up better, cleaner candidates.

How NOTA works and where it stops

• Rollout:
• first used in the November–December 2013 assembly elections in Delhi, Rajasthan, Madhya Pradesh, Chhattisgarh and Mizoram;

• since 2015 it has had its own symbol, a ballot paper with a black cross.

• On the machine: NOTA is the last option on the ballot unit. M3 EVMs can handle up to 384 candidates, including NOTA [1][2].

• Legal effect:
• NOTA votes are counted and announced, but they do not change the result;

• the candidate with the most valid votes wins, even if NOTA gets more votes than that candidate.

• Forfeiture of deposit (when a candidate loses the security money paid at nomination):

• a candidate loses the deposit if they get less than one-sixth of the valid votes;

• NOTA votes are left out of the "valid votes" used for this test.

• Not used in Rajya Sabha elections: these are indirect elections, where MLAs vote by open ballot under proportional representation. NOTA does not apply to them (Shailesh Manubhai Parmar v. ECI, 2018).

In the Constitution and practice

• Constitutional basis: Article 19(1)(a), the freedom of speech and expression. The Court read the freedom of voting, including secret rejection, into it.
• Wider base: Article 326 gives universal adult franchise (every adult citizen can vote). NOTA lets an unhappy voter still take part in the election instead of staying away.
• Law that changed: the Conduct of Election Rules, 1961. The secrecy-breaking parts of Rules 41(2), 41(3) and 49-O were struck down.
• Who runs it: the Election Commission of India (ECI) puts the NOTA option on EVMs and counts NOTA votes along with the other votes.
• In practice:
• NOTA gets about 1% of votes nationally in Lok Sabha elections;

• Indore, 2024 Lok Sabha election: over 2 lakh NOTA votes, the highest in any constituency.

• Later case: Shailesh Manubhai Parmar v. ECI (2018) said NOTA cannot be used in Rajya Sabha elections.

• Reform debate: the Law Commission did not recommend a "right to reject". It said the 2013 NOTA judgment rested on secrecy, not on any right to reject [3].
• NCERT Class 8 calls NOTA "a quiet but powerful tool". Voters can show they are unhappy without staying away.

Don't confuse with

• Rule 49-O ("decline to vote"): the old method. The voter's refusal was written down in Form 17A, so it was not secret. NOTA is pressed privately on the EVM.
• Right to reject: a proposal to cancel the election and hold a fresh one if NOTA wins. NOTA has no such effect, and the Law Commission did not recommend it [3].
• Tendered vote (Rule 42 / 49P): a paper vote given to a real voter when someone else has already voted in their name. It is kept as evidence and not counted. NOTA votes are counted and announced.
• Abstaining (not voting at all): the voter does not turn up, so nothing is recorded. A NOTA vote is recorded as a real protest at the booth.

Prelims Hooks

• PUCL v. Union of India (27 September 2013): secret rejection of all candidates is part of the freedom of voting under Article 19(1)(a). The judgment is based on secrecy, not a "right to reject".
• The judgment struck down the secrecy-breaking parts of Rules 41(2), 41(3) and 49-O. Rule 49-O was the old, non-secret "decline to vote", recorded in Form 17A.
• First use: November–December 2013 assembly elections (Delhi, Rajasthan, Madhya Pradesh, Chhattisgarh, Mizoram). NOTA has had its own symbol (a ballot paper with a black cross) since 2015.
• Trap: even if NOTA gets the most votes, the candidate with the most valid votes still wins. NOTA votes are also left out of the valid votes used for the one-sixth deposit forfeiture test.
• Trap: NOTA is not available in Rajya Sabha elections (Shailesh Manubhai Parmar v. ECI, 2018).
• Indore (2024 Lok Sabha election): over 2 lakh NOTA votes, the highest in any constituency. Nationally, NOTA gets about 1% of votes.

Mains Points

• NOTA protects secrecy, but it has little power:
• it gives voters a secret way to protest and keeps unhappy voters in the system;
• but it cannot change who wins and gets only about 1% of votes;

• so its push on parties to field cleaner candidates has been weak.

• The right to reject debate:

• supporters want a fresh poll when NOTA wins, so the vote has real power;
• critics point to the cost, voter fatigue and repeated elections;

• the Law Commission did not recommend it, because the 2013 judgment was about secrecy, not rejection [3].

• Why NOTA is limited to direct elections:

• secrecy matters when citizens vote directly;
• Rajya Sabha elections use open ballots by MLAs to stop cross-voting and keep MLAs accountable to their party;
• so leaving out NOTA there (Shailesh Manubhai Parmar, 2018) fits the purpose of the PUCL judgment.

Related concepts

• Indelible ink
• Tendered vote
• Booth capturing
• Electronic voting machine
• Voter verifiable paper audit trail
• NOTA

Read more

• Polling and counting: EVMs, VVPAT and NOTA