NOTA can't be permitted in RS polls, says SC

The Supreme Court on Tuesday quashed an Election Commission notification introducing the ‘None of the Above’ option in the Rajya Sabha elections, saying it would encourage the “Satan” of defection and graft.

A bench headed by Chief Justice Dipak Misra said the NOTA option was meant only for direct elections and not polls held by the system of proportional representation by means of a single transferable vote.

“When one analyses the exercise of choice of NOTA in the voting process of the Council of States, where open ballot is permissible and secrecy of voting has no room, and further where the discipline of the political party/parties matters, it is clear that such choice will have a negative impact.

“An elector, though a single voter, has a quantified value of his vote and the surplus votes are transferable. There is existence of a formula for determining the value of the vote. The concept of vote being transferable has a different connotation. It further needs to be stated that a candidate, after being elected, becomes a representative of the State and does not represent a particular constituency,” the bench, which also comprised justices A M Khanwilkar and D Y Chandrachud, said.

The apex court said if NOTA was allowed in the election of the members to the Council of States, the aspect of defection would “indirectly usher in with immense vigour”.

“We may immediately add that the option of NOTA may serve as an elixir in direct elections, but in respect of the election to the Council of States, which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption,” the bench said.

The judgment came on a plea of Shailesh Manubhai Parmar, who was the Congress chief whip in the Gujarat assembly during the last Rajya Sabha polls, in which the party had fielded sitting MP Ahmed Patel.

Parmar had challenged the poll panel’s notification allowing the NOTA option in ballot papers. The Gujarat Congress leader had alleged that if the NOTA provision was allowed in the Rajya Sabha polls, it would encourage “horse-trading and corruption”.

The bench on Tuesday said the provision for introduction of NOTA, as conceived by the Election Commission, was absolutely erroneous.

“We are disposed to think that the decision could not have also said so, having regard to the constitutional provisions contained in Article 80 and the stipulations provided under the Tenth Schedule to the Constitution.

“The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the 10th Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection,” it said.

The top court said that the introduction of NOTA to the election process for electing members of the Council of States will be “an anathema to the democracy” which is a basic feature of the Constitution.

It held that NOTA will destroy the concept of value of a vote and representation and encourage defection, opening the doors for corruption. Such a concept completely ignores the role of an elector in an election and fully destroys the democratic value.

“It has to be remembered that democracy garners its strength from the citizenry trust which is sustained only on the foundational pillars of purity, integrity, probity and rectitude and such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted, so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces,” it said.

The poll panel had said NOTA was first introduced in 2014 following an apex court verdict a year earlier and the Congress then did not have any objection in subsequent polls as it suited them.

Two circulars were issued by the Election Commission on January 24, 2014 and November 12, 2015, giving the Rajya Sabha members the option to press the NOTA button in the Upper House polls.