2017 Rajya Sabha Elections - NOTA in the Rajya Sabha Election in Gujarat
Supreme Court of India(SCI) refuses to stay EC notification allowing NOTA in RS polls in Gujarat
A Bench of Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar denied the Gujarat Congress's plea to freeze the option for MLAs voting in the Assembly for the Rajya Sabha polls.
Senior advocate Kapil Sibal, appearing for the Congress, submitted that NOTA would be a "recipe for corruption" and it would be seen as if the court was turning its back on corruption. He 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 Rajya Sabha 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, 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".
How does the NOTA work in RS elections?
In 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 votes for someone else or uses 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 party directions, the EC rules say.
Why are the Congress and BJP against it?
Both parties are against the NOTA option being introduced in the RS elections.
Congress approached the Supreme Court on Tuesday about this claiming it was violative of the Constitution and electoral laws, but the EC just pointed to its 2014 circular and said it was not a new direction. The Congress is alleging that the NOTA option has been brought with an aim of influencing the result of Gujarat RS poll, where the party has beenfacing several defections from its MLAs. Party members even created a ruckus in the Rajya Sabha on Tuesday, with angry members forcing multiple adjournments of the proceedings.
Senior advocate Kapil Sibal, appearing for the Congress on Thursday, argued that NOTA would be a "recipe for corruption" and “it would be seen as if the court was turning its back on corruption”.
A day after that, the BJP approached the EC, claiming that since the usage of NOTA has become a matter of debate, a proper consensus was first needed before its implementation.
The party said that since there was no secrecy for the voting in Rajya Sabha election, the purpose of NOTA was not much of use. “Therefore, the BJP demands that direction for using NOTA option in the election for Rajya Sabha in the state of Gujarat be withdrawn with immediate effect,” the BJP said