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State Election Commission, Gujarat, can’t take away the right to NOTA

By Rohit Prajapati, Dipti Bhatt, Krishnakant*
Gujarat State is an integral part of Indian state. We are shocked to learn from the Press Note dated October 23, 2015 of the State Election Commission (SEC) that it has in effect decided to deny the citizen the right to exercise None of the Above (NOTA), thereby denying in effect denied the citizen’s the right of NOTA during the forthcoming civic polls to take place in November 2015.
The SEC has taken away the right to exercise NOTA referring to the legal proceedings in the High Court of Gujarat – Special Civil Application No. 13552 of 2015. It is clear that there are two possibilities in this scenario. Firstly, either the Gujarat State Election Commission has willfully misinterpreted the Gujarat High Court’s order of August 21, 2015 and decided to remove the right to exercise NOTA. Or secondly, that High Court of Gujarat has granted the stay to the Supreme Court’s larger bench judgment dated September 27, 2013 in Writ Petition (Civil) No 161 of 2004 on right to exercise the NOTA option, which is equally surprising.
The Right to exercise NOTA voting option is the outcome of the Public Interest Litigation – Writ Petition (Civil) No 161 of 2004 by order dated September 27, 2013. In the order dated 27 September 2013 the Supreme Court of India (Justice P Sathasivam, Justice Ranjana Prakash Desai, and Justice Ranjan Gogoi) clearly mentioned that:
“60) Taking note of the submissions of Election Commission, we are of the view that the implementation of the NOTA button will not require much effort except for allotting the last panel in the EVM for the same.
“61) In the light of the above discussion, we hold that Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the R P Act and Article 19(1) (a) of the Constitution to the extent they violate secrecy of voting.
“In view of our conclusion, we direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called “None of the Above” (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses.”
In the light of this order during the Lok Sabha Elections, 2014 NOTA button in the EVM was provided. This Supreme Court order has become the law of the land and has become the norm in elections. This order is also applicable to all elections, and the SEC of Gujarat State cannot take away the right to NOTA given by the Supreme Court of India.
We would like to emphasise that one of the most important aspects of the ruling of the Supreme Court was the consideration of the voter who decides to exercise his/her right and duty to vote and actually goes to the voting booth. The Supreme Court held that the right of the choice of NOTA is an important part of the voter’s right to vote as shown in the extract of the judgment carried above, and that the right to vote includes the right not to vote, to express which NOTA was directed be provided.
In face of this Supreme Court judgement and the subsequent action of the Election Commission of India, the action of the SEC of Gujarat State to take away the right to NOTA is arbitrary and illegal and in violation of fundamental rights guaranteed by the apex court of the country. Such action of the SEC of Gujarat State is illegal and without power and is also in contempt of the Supreme Court of India’s order dated 27 September 2013 in `PUCL vs Union of India’ [Writ Petition (Civil) No. 161 of 2004].
The SEC of Gujarat State must restore the citizen’s right to exercise NOTA in coming local civic elections and to issue circulars in this regard to all election officers as also the general public so that they may know about the correct reading of the law and their rights.

*With People’s Union for Civil Liberties, Gujarat

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