Nota: A bad idea for indirect elections

On January 24, 2014 and subsequently again on January 27, the Election Commission issued an administrative direction that the “None of the Above” (Nota) provision would be made applicable for elections to the Council of States (Rajya Sabha) also. It clarified the process of voting by another clarificatory directive on November 12, 2015. 

Somehow this administrative direction escaped the attention of lawmakers until it got flagged during the run-up to the election in Gujarat scheduled for August 8, 2017. 

Though the Supreme Court has refused to stay the use of Nota in the Gujarat Rajya Sabha elections, it has nonetheless agreed to examine the constitutional validity of the Election Commission’s administrative diktat.

To put things in perspective, the Supreme Court in PUCL v. Union of India 2013 (10) SCC 1 directed the use of Nota in the context of direct elections to the Lok Sabha and the respective state Assemblies. The judgment delineated that in a direct election a voters must be given an option to choose “None of the above” to express their dissatisfaction with all the candidates/ political parties on the ballot. 

In this judgment the court observed: “Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country”. Accordingly, the court directed the EC to provide necessary provision in the ballot papers/EVMs for providing the Nota button. Subsequently, necessary amendments were made in the respective statutes to give effect to the orders of the court.

On the other hand, when it comes to electing members to the Rajya Sabha, Article 80(4) of the Constitution provides for indirect election by the members of the legislative Assembly of a state in accordance with the system of proportional representation by “a” single transferable vote. 

Further, Section 59 of the Representation of the People Act 1951 provides for the manner of election and reads as follows: Manner of voting at elections

i) At every election where a poll is taken, votes shall be given by ballot in such manner as may be prescribed, (and, save as expressly provided by this Act, no votes shall be received by proxy) (Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot.)

The use of Nota in indirect elections is thus, in direct conflict with and militates against the system of proportional representation by means of the single transferable vote envisaged by the Constitution, the Act and the Rules. 

The use of Nota cannot be sanctioned by way of a circular dated January 24, 2014, which in any event cannot override the provisions of Article 80(4), the provisions of the Act and the Rules. In any event, the use of Nota cannot be made applicable without the necessary amendments in the Act and Rules. It is fairly evident therefore, that the system of Nota makes the system of proportional representation by means of the single transferable vote meaningless, cannot be made applicable in Rajya Sabha elections.In matters of election to the Rajya Sabha, MLAs are also duty bound to support the candidate put up by the political party to which they are affiliated. 

In Kuldip Nayar v. Union of India (2006) 7 SCC 1; a Constitution bench of the Supreme Court categorically observed that the declarations under Form 2-B read with 2-C binds the MLAs to vote for the candidate set up by the political party to which they are affiliated. The court further emphasised the rationale behind proportional representation and the need for maintaining the sanctity of members of the political party by ensuring party discipline.

The ruling held: “It cannot be forgotten that the existence of political parties is an essential feature of our parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting to cross-voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. This would weaken party discipline over errant legislators. Political parties are the sine qua non of parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect elections. Parliamentary democracy and a multi-party system are an inherent part of the basic structure of the Indian Constitution…” 

While upholding the validity of an open ballot, the court categorically observed: “owing to the impugned amendment… a voter has to disclose the way he has cast the vote to the representative of his party”. 

The court also deprecated the practice of cross-voting in Rajya Sabha elections and held that it is the duty of Parliament to take cognisance of the misbehaviour and misconduct and legislate remedial measures for the same. Breach of discipline of political parties for collateral and corrupt considerations removes the faith of the people in a multi-party democracy.

In view of the categorical observations of the court in the Kuldip Nayar case rendered in the context of Rajya Sabha elections, no direction ought to have been given by the commission to introduce Nota, which has the effect of not only upsetting and destroying the nature of proportional representation by means of single transferable vote but also will have the effect of breaching party discipline by virtually amending the 10th Schedule of the Constitution of India (anti-defection law) through an administrative order thereby diminishing the importance of political parties which the court has held to be a part of the basic feature of the Constitution.