The political slugfest over the decision to use NOTA option in the upcoming Rajya Sabha polls in Gujarat on Wednesday reached the Supreme Court which agreed to hear on Thursday a plea filed by the state unit of the Congress.
The Bharatiya Janata Party has fielded its national president Amit Shah, Union minister Smriti Irani and Balwantsinh Rajput for the three Rajya Sabha seats from Gujarat against the lone Congress candidate Ahmed Patel. The election is scheduled on August 8.
The plea was mentioned before a bench comprising justices Dipak Misra, Amitava Roy and A M Khanwilkar by senior counsel Kapil Sibal who sought an urgent hearing on the ground that there was no statutory provision for the none of the above option in the ballot paper for these elections.
Chief whip of the Congress in the Gujarat Assembly Shailesh Manubhai Parmar in his petition has sought quashing of the August 1 circular issued by the secretary of the Assembly. The circular has stated that the NOTA option would be made applicable in the Upper House elections.
The petition has alleged that use of the option would be violative of the provisions of the Representation of People's Act, 1951 and the Conduct of Election Rules, 1961.
"Without a corresponding amendment in the Act and the Rules any purported administrative action of the Election Commission of India to introduce NOTA is ex-facie illegal, arbitrary and in fact tainted with malafide," it claimed.
The petition alleged that the ECI, which 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 Act and the Rules".
It said the All India Congress Committee had made a representation before the ECI "highlighting the illegal nature of the circulars" and requesting the poll panel to refrain from implementing the same to ensure free and fair elections, but the state Assembly issued a circular making available the NOTA choice.
The plea sought quashing and declaring as "void" the circulars dated January 24, 2014 and November 12, 2015 issued by the ECI making available the option.
It alleged that the direction was not only "contrary" to the express provisions of Article 80(4) of the Constitution, the RPA and the Rules, but also against a judgement of the apex court in 2006.
The petition claimed that the circulars on NOTA defeated the system of proportional representation by means of single transferable vote.
The direction to have NOTA in the elections was enforced in January 2014 after the Supreme Court in 2013 made it mandatory to have the option in the electronic voting machines.
In the Rajya Sabha polls, the MLAs have to show their ballot paper to an authorised party agent before putting it in ballot box.
If a voter (MLA) defies the party directive and casts the ballot for someone else or uses the NOTA option, he cannot be disqualified as a legislator.
But the party is free to take disciplinary action including expulsion. The defiant voter can continue to be an MLA and his vote can also not be invalidated for defying the party direction, according to the ECI rules.
