Bench slams EC move, says it will bring back the ‘Satan of defection’

The Supreme Court on Tuesday scrapped the use of ‘None Of The Above’ (NOTA) option in the coming Rajya Sabha elections.

A Bench, led by Chief Justice of India (CJI) Dipak Misra held that the NOTA option is meant only for universal adult suffrage and direct elections and not polls held by the system of proportional representation by means of the single transferable vote as done in the Rajya Sabha.

The Bench had reserved for judgment on a petition filed in 2017 by Gujarat Congress leader Shailesh Manubhai Parmar to do away with the ‘NOTA’ option in Rajya Sabha elections. The petition was filed in connection with the Rajya Sabha election in which Congress leader Ahmed Patel was contesting.

The CJI even then indicated that the court may indeed rule against the two circulars issued by the Election Commission of India (ECI) 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.

Also Read NOTA in the Rajya Sabha polls: an explainer

Govt support to petition

Attorney General K.K. Venugopal had completely lent the government’s support to the public interest litigation petition filed by Mr. Parmar, represented by senior advocate A.M. Singhvi and advocate Devadatt Kamat, that NOTA in indirect elections, such as in the Rajya Sabha, would lead to horse-trading, corruption and use of extra constitutional methods to defeat a party candidate.

Mr. Singhvi argued that the system of NOTA makes the system of proportional representation by means of single transferable vote nugatory and otiose. The ECI cannot sanction the use of NOTA by way of mere circulars, which have the effect of overriding the provisions of Article 80(4) — proportional representation by means of the single transferable vote, the provisions of Representation of People Act, 1951 and the Conduct of Election Rules, 1961.

Mr. Singhvi said the circulars negated the entire purpose of open-voting brought about in 2003 to further party discipline and adherence to party’s choice of candidate in the elections to the Rajya Sabha.

Advocate Amit Sharma, for the ECI, countered that a person, along with a right to vote, had the right not to vote.

“Recipe for corruption”

Mr. Parmar had argued that NOTA would be a “recipe for corruption”. He raised the concern that MLAs could defy party whips and invalidate their votes by opting for NOTA.

“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,” his petition said.

The circular was ex-facie illegal, arbitrary and tainted with mala fides, as an executive instruction cannot override express statutory provisions, it said.