Nota in Rajya Sabha election: Supreme Court reserves verdict

New Delhi: The Supreme Court on Monday reserved its verdict on whether Nota  (None of the Above) option should be applicable to Rajya Sabha elections in which MLAs of a legislative assembly vote according to the party strength.

A three-Judge bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud while reserving verdict on a petition seeking to ban Nota in RS polls, at the outset, orally observed that NOTA should not be available for RS polls.

The CJI observed, “Rajya Sabha elections are already complicated, why the Election Commission wants to make it more complicated. Law does not permit an MLA to vote for Nota. By this notification, the EC is empowering MLAs not to vote. When he has a constitutional obligation to elect that he can’t take recourse to Nota. We have a doubt whether an MLA can refrain from voting to a candidate by marking Nota.”

Justice Chandrachud asked the counsel “why should an MLA show the ballot paper before putting it in the ballot box. By doing so, you are telling that you have abided by your party interest. But when you vote for NOTA, your vote is treated as invalid. Can you do that.”  

Attorney General K.K. Venugopal appearing for the Centre differed with the stand of the Election Commission and informed the court that Nota is applicable to direct elections and must not be applied to indirect elections to Rajya Sabha. He said, if a person is voting against the interest of the party, action could be taken against him.

The court was hearing a petition filed in August 2017 by Shailesh Manubhai Parmar, chief whip of the Congress in Gujarat assembly challenging the notification issued by the EC.

It was apprehended by the party that some of the MLAs may use NOTA option to prevent the election of Ahmed Patel, political advisor to the Congress President Sonia Gandhi, but he won the seat. Counsel for the EC drew the court’s attention to the fact that after notification 14 RS elections were held in different states but the Congress party had chosen to challenge the same belatedly.

The EC said “the use of NOTA in ballot papers was first declared by the Election Commission in its circular in January 2014 and this was followed by another circular in November 2015. Anybody could have challenged it after 2014 circular.”

Appearing for the petitioner, senior counsel Abhishek Singhvi argued that the EC could not have issued circulars because the statutory rules under the Representation of People Act did not provide for NOTA. He argued that the 2014 circular to introduce NOTA is ex-facie illegal, arbitrary and tainted with malafides, as an executive instruction cannot override express statutory provisions.

He said, 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 petitioner sought quashing of the 2014 circular.