Gujarat: SC refuses to stay EC notification allowing NOTA in RS polls

The ‘None Of The Above’ (NOTA) will continue as an option on the ballot paper in the upcoming Rajya Sabha elections.

The Supreme Court on Thursday refused to stay a three-year-old Election Commission circular which introduced NOTA in Rajya Sabha elections.

A Bench of Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar denied Gujarat Congress’s plea to freeze the NOTA option for MLAs voting in the State Legislative Assembly for the Rajya Sabha polls.

The court paid scant regard to submissions by senior advocate Kapil Sibal, for the Congress, that NOTA would be a “recipe for corruption” and it would be seen as if the court was turning its back on corruption.

Mr. Sibal raised the concern that MLAs could defy party whips and invalidate their votes by opting for NOTA.

To this, Justice Roy asked Mr. Sibal whether he was apprehensive of losing the RS polls in Gujarat scheduled for August 8.

The court however issued notice to the Election Commission of India, saying the poll body should be heard in detail as any judicial decision on NOTA may have a ripple effect on elections conducted between January 24, 2014 to the present day.

The court asked why the Congress was challenging the circular now while noting, “God knows how many elections were held from January 26, 2014”.

The court specifically recorded Attorney-General K.K. Venugopal’s submission that the Union of India does not in anyway interfere with the decisions of the Election Commission and, hence, has no truck in this case.

Consequently, the court issued notice only to the Election Commission for a response on the Gujarat Congress’s challenge of its January 24, 2014 notification. Though the Union was let off as a party in the case, Mr. Venugopal was roped in by the Bench to assist the court.

“Does the Election Commission not consult political parties before issuing such a circular?” Justice Khanwilkar asked at one point even as the court scheduled the case for hearing the Election Commission on September 13.

“The system of NOTA makes the system of proportional representation by means of single transferable vote nugatory and otiose and cannot be made applicable in Rajya Sabha Elections. The use of NOTA cannot be sanctioned by way of the impugned circulars which has the effect of overriding the provisions of Article 80(4), the provisions of Representation of People Act 1951 and the Conduct of Election Rules 1961,” Shailesh Manubhai Parmar, the Gujarat Congress whip, submitted in his petition.

The petition said the 2014 circular to introduce NOTA is ex facie illegal, arbitrary and tainted with malafides as an executibe instruction cannot override express statutory provisions.

For example, the 1961 Rules mandates that a candidate should come first in the list on a ballot paper. But here NOTA is listed as the first preference.

It said the Election Commission, “despite being the constitutional watch dog for ensuring free and fair elections, has become a tool in the hands of the ruling dispensation to facilitate violation of the provisions of the Constitution, the provisions of the Act and the Rules”.

The Election Commission had issued a Press Note on July 14 on the conduct and schedule of biennial elections to the Council of States for the States of Gujarat (3 seats), West Bengal (6 seats) and Madhya Pradesh (1 seat).