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To
Sub : Provision for “None of the above” option on the EVM/Ballot Paper- Instructions.
Sir/Madam,
The Hon’ble Supreme Court, in its judgment dated 27th September, 2013, in Writ
Petition (C ) No. 161 of 2004 (People’s Union for Civil Liberties &Anr.Vs Union of India &Anr),
has directed that the Commission should make necessary provision in the ballot papers/
EVMs for “None of the Above (NOTA)” option so that the electors who do not wish to vote
for any of the candidates can exercise their right not to vote for any candidate without
violation of the secrecy of their decision. Rules 41 (2), 41(3) and 49-O of the Conduct of
Elections Rules, 1961, have been held to be ultra vires Section 128 of the Representation of
the People Act, 1951 and Article 19(1)(a) of the Constitution. A copy of the operative part of
the Judgment is enclosedat Annexure-1.
2. In compliance of the judgment and order of the Hon’ble Supreme Court, referred to
above, the Commission hereby gives the following directions to implement the NOTA option
on EVMs/Ballot Papers:-
(a) In the directions regarding the form and language of the postal ballot papers
and the ballot papers to be affixed on the balloting unit of the EVM, given in
Paragraphs 4.2 and 25.2, respectively in Chapter X of the Handbook for
Returning Officers (2009 version), the following modifications shall be made:
(i) After clause (v) of para 4.2, the following clause shall be added:
“(vi-a) After the panel containing the name and particulars of the last
candidate on the ballot paper, there shall be a panel belowthe said
last panel with the words “None of the Above” written therein, for
the benefit of those electors who may wish to exercise the option of
not voting for any of the candidates in the fray. These words shall
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bewritten in the same language or languages as used in the case of
names of candidates. The size of the panel shall be the same as in the
case of the candidates.”
(ii) In para 25.2, after clause (xiv), the flowing clause shall be added:
“(xiv a) After the panel containing the name and symbol of the last
candidate, there shall be a panel below the said last panel with the
words “None of the Above” written therein, for the benefit of those
electors who may wish to exercise the option of not voting for any of
the candidates in the fray. These words shall be written in the same
language or languages as used in the case of names of candidates.
The size of the panel for “None of the Above”shall be the same as for
the candidates. For example, if these are 12 candidates contesting
the election, there shall be provided the 13th panel with the words
“None of the Above” and the ballot button against such 13 th panel
shall also be kept open. If there are sixteen candidates in the fray, an
additional balloting unit shall be attached to the first balloting unit for
the “None of the Above” panel. Thus, in case more than one balloting
unit is used, “None of the Above” panel shall be only in the last
balloting unit below the panel for the last candidate.
(b) In Part II (Result of Counting ) of Form 17C, the names of the candidates and
number of votes recorded in the EVM for each candidate is to mentioned in
columns 2 and 3 thereof. In view of the “None of the Above” option now
being provided, after the name and votes for the last candidate, the votes
recorded against “None of the Above” shall also be shown. Thus, the total
votes to be indicated in this Part should also include the votes against “None
of the Above” option.
(c) In Form 20 (Final Result Sheet), in the last but one column of the table in Part
I, the number of votes recorded against “None of the Above” option shall
also be mentioned for each polling station and the total votes for NOTA
option for all polling stations shall be mentioned at the bottom of the Table.
Similarly, in Part II of Form 20 also, the number of votes recorded against
“None of the Above” option for each Assembly segment shall be mentioned.
(d) In Form 21E (Return Of Election) , after the name and number of votes in
respect of the last candidate, the number of votes against “None of the
Above” option shall be mentioned.
3. A sample each of the Postal Ballot paper, Ballot Paper to be affixed on the balloting
unit, Form 17C Part II, Form 20 and Form 21Eis enclosed for guidance (Annexure 2-
Collectively).
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4. Since Rules 41(2), 41(3) and 49-O have been declared as ultra vires the provisions of
the Constitution and RP Act 51, the option under Rules 41(2) and Rule 49-O shall not be
available henceforth. The Presiding Officers and Polling Officers should be specifically
briefed about this position in the training sessions. [ They should, however, be told
specifically that where ballot papers are used for taking poll, the ballot papers returned
as `spoilt’ under Rule 41(1) shall continue to be kept and sealed in a separate packet].
5. It is clarified that NOTA has the same effect as not voting for any candidate under the
earlier provisions of Rule 49-O. Therefore, even if, in any extreme case, the number of
votes against NOTA is more than the number of votes secured by the candidates, the
candidate who secures the largest number of votes among the contesting candidates
shall be declared to be elected as per the provisions of Rule 64.
6. The changes are being made in the soft copy of the Handbook for ROs on the website
of the Commission. Latest version of the Handbook can be downloaded from the
website.
8 . Please acknowledge receipt of this letter and confirm action taken as required above.
Yours faithfully,
(K.F.WILFRED)
PRINCIPAL SECRETARY
3
REPORTABLE
Versus
JUDGMENT
P.Sathasivam, CJI.
and 49-O of the Conduct of Election Rules, 1961 (in short ‘the
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Representation of the People Act, 1951 (in short ‘the RP Act’)
ground that though the above said Rules, viz., Rules 41(2) &
(3) and 49-O, recognize the right of a voter not to vote but
ultra vires to the said Rules but also violative of Articles 19(1)
Covenants.
declaring Rules 41(2) & (3) and 49-O of the Rules ultra vires
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secret under the existing RP Act/the Rules or under Article
SCC 294 and People’s Union for Civil Liberties vs. Union
Ors. (2006) 7 SCC 1 did not overrule or discard the ratio laid
to arrive at a decision.
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6) Heard Mr. Rajinder Sachhar, learned senior counsel for
impleading parties.
Contentions:
Rule 41(2) of the Rules, an elector has a right not to vote but
a voter who decides not to vote has been accepted but the
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shall be made against the said entry in Form 17-A by the
of the secrecy clause are not only ultra vires but also
Constitution.
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constitutional right nor a common law right but is a pure and
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candidates or their representatives that in whose favour a
vote freely and fearlessly. He also pointed out that the right
pointing out various provisions both from the RP Act and the
feature of “free and fair elections”, Rules 41(2) & (3) and 49-
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Commission of India, prayed that necessary directions may
that the voters who come to the polling booth and decide not
Discussion:
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purpose authorized by or under any law) communicate to
any person any information calculated to violate such
secrecy:
under:
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(3) All ballot papers cancelled under sub-rule (1) or sub-
rule (2) shall be kept in a separate packet.
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(7) Where an elector is not allowed to vote under sub-rule
(6), a remark to the effect that voting procedure has been
violated shall be made against the elector's name in the
register of voters in Form 17A by the presiding officer
under his signature.
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(b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of
the will of the electors;”
xxxxx
“FORM 17A
[See rule 49L)
REGISTER OF VOTERS
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Election to the House of the People/ Legislative Assembly of the
State/ Union territory ……………from………………Constituency No. and
Name of Polling Station……………Part No. of Electoral Roll…………
which is of the year 2004, the petitioners have prayed for the
following reliefs:
“(i) declaring that Rules 41(2) & (3) and 49-O of the
Conduct of Election Rules, 1961 are ultra vires and
unconstitutional to the extent they violate secrecy of vote;
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(ii) direct the Election Commission under the existing
Representation of People Act, 1951 and the Conduct of
Election Rules, 1961 and/ or under Article 324 to provide
necessary provision in the ballot papers and the voting
machines for protection of right not to vote and to keep
the exercise of such right secret;”
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Reforms (supra) and People’s Union for Civil Liberties
have to decide:
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19) A three-Judge Bench of this Court comprising M.B Shah,
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“(2) The right to vote at the elections to the House of the
People or Legislative Assembly is a constitutional right but
not merely a statutory right; freedom of voting as distinct
from right to vote is a facet of the fundamental right
enshrined in Article 19(1)(a). The casting of vote in favour
of one or the other candidate marks the accomplishment
of freedom of expression of the voter.”
succinct, the ratio of the judgment was that though the right
Constitution.
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candidate is a fundamental right of a voter so that he can
under:-
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right as a voter which is to be regulated by statutory law
on the election like the RP Act…”
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cannot be said that Kuldip Nayar (supra) has observed
agree too in the opening line in para 362 and thereafter went
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clearly not an issue in dispute in the present case. With the
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Anand Vardhan Chandal, (2000) 10 SCC 648, Kuldip
India, (2010) 7 SCC 202, wherein it has been held that the
statutory right.
316, this Court held that the right to move before this Court
series of cases, this Court has held that it is the duty of this
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secrecy is breached. This is how Articles 14 and 19(1)(a) are
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appropriate to direct the petitioners to go to each and every
from our conclusion on legal issue, in view of the fact that the
writ petition is pending before this Court for the last more
particularly, Section 128 of the RP Act, Rules 39, 41, 49M and
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“441. Voting at elections to the Council of States cannot
be compared with a general election. In a general election,
the electors have to vote in a secret manner without fear
that their votes would be disclosed to anyone or would
result in victimisation. There is no party affiliation and
hence the choice is entirely with the voter. This is not the
case when elections are held to the Council of States as
the electors are elected Members of the Legislative
Assemblies who in turn have party affiliations.
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454. The distinguishing feature between “constituency-
based representation” and “proportional representation”
in a representative democracy is that in the case of the list
system of proportional representation, members are
elected on party lines. They are subject to party discipline.
They are liable to be expelled for breach of discipline.
Therefore, to give effect to the concept of proportional
representation, Parliament can suggest “open ballot”. In
such a case, it cannot be said that “free and fair elections”
would stand defeated by “open ballot”. As stated above, in
a constituency-based election it is the people who vote
whereas in proportional representation it is the elector
who votes. This distinction is indicated also in the
Australian judgment in R. v. Jones. In constituency-
based representation, “secrecy” is the basis whereas
in the case of proportional representation in a
representative democracy the basis can be “open ballot”
and it would not violate the concept of “free and fair
elections”, which concept is one of the pillars of
democracy.”
held as under:
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“14…Secrecy of ballot can be appropriately styled as a
postulate of constitutional democracy. It enshrines a vital
principle of parliamentary institutions set up under the
Constitution. It subserves a very vital public interest in
that an elector or a voter should be absolutely free in
exercise of his franchise untrammelled by any constraint,
which includes constraint as to the disclosure. A remote or
distinct possibility that at some point a voter may under a
compulsion of law be forced to disclose for whom he has
voted would act as a positive constraint and check on his
freedom to exercise his franchise in the manner he freely
chooses to exercise. Therefore, it can be said with
confidence that this postulate of constitutional democracy
rests on public policy.”
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election. He further pointed out that the principle of secrecy
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Whether a voter decides to cast his vote or decides not to
17-A, which treats a voter who decides not to cast his vote
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A remote or distinct possibility that the voter at some point of
“secret ballot”.
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former, secrecy is the basis, in the latter the system of open
that requirement.
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35) In Lily Thomas vs. Speaker, Lok Sabha, (1993) 4
neutral as well”.
(3) and Rule 49-O of the Rules make it clear that a right not
to vote has been recognized both under the RP Act and the
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a voter in a parliamentary democracy and it has to be
also asserted.
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39) In India, elections traditionally have been held with
the provision of Rule 49B of the Rules and the design of the
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his vote in secrecy, the control unit remains under the
emanates red light while the ballot unit which has been
the control unit, which is in public gaze, and the high pitched
beep sound is heard by one and all. Thereafter, the EVM has
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consequently, not press any of the labeled button neither will
the light on the control unit change from red to green nor will
booth at the relevant time will come to know that a vote has
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talks about Form 17-A, is applicable only in cases of voting by
voter since the voting machines did not have ‘None of the
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letter to the Secretary, Ministry of Law and Justice stating,
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45) Democracy and free elections are part of the basic
Raj Narain, 1975 Supp 1 SCC 198, Khanna, J., held that
democracy can function only when elections are free and fair
and the people are free to vote for the candidates of their
choice. In the said case, Article 19 was not in issue and the
and Rule 49-O, viz., “right not to vote”, we are of the view
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that this Court is competent/well within its power to issue
reads as under:
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48) Mr. Malhotra, learned ASG has also pointed out that
booth and reject all the candidates, which would have the
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stands on the spirit of tolerance and allows people to have
Conclusion:
set up, there can be no two opinions that free and fair
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elections would alone guarantee the growth of a healthy
voting.
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thrive. Therefore, even if the right to vote is statutory, the
issue at hand.
will foster the purity of the electoral process and also fulfill
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duress or coercion. Protection of elector’s identity and
casts his vote and the voter who does not cast his vote is
people and field candidates who are known for their integrity.
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turn up for voting which in turn provides a chance to
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following countries have provided for
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13. Spain Ballot Paper Blank Vote
name/candidate.
balloting unit after the last panel containing the name and
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asserted in the written submission that the provision for the
the balloting unit will contain the words like “None of the
above” and the ballot button against this panel will be kept
open and the elector who does not wish to vote for any of the
button against the 13th panel and his vote will be accordingly
candidate.
button will not require much effort except for allotting the
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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
and decide not to vote for any of the candidates in the fray,
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62) The writ petition is disposed of with the aforesaid
directions.
……….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(RANJANA PRAKASH
DESAI)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
SEPTEMBER 27, 2013.
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Conduct of Election Rules, 1961
(Statutory Rules and Others)
[FORM 21E]
(See rules 64)
Return of Election
Return of Election
2. B YYYYY cd
3. C Independent ef
I declare that –
Place ……………………..
Date ………………………
Returning Officer
Conduct of Elections Rules, 1961
(Statutory Rules and Others)
[FORM 20
(To be used for recording the result of voting at polling station other than notified polling stations)
Part I
Serial No. of No. of Valid votes cast in favor of Total of No. of Votes Total no.
polling station A B C valid votes rejected for of
votes ‘NOTA’ tendered
(Test option votes
Votes)
1. .. .. .. .. .. .. ..
2. .. .. .. .. .. .. ..
3.
4.
-------------------------------------------------------------------------------------------------------------------------------
TOTAL No. of .. .. .. .. .. .. ..
votes recorded
at Polling Stations:
Place…………
Date…………
Returning Officer
Annexure- 2
FORM 17C
TOTAL
Whether the total number of votes shown above tallies with the total number of votes shown against item
6 of Part I or any discrepancy noticed between the two totals.
Place ………….
Date……………
1.
2.
3.
4.
5.
6.
7.
Place ……………
Date ……………
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