In case of cross-voting, the anti-defection law disqualifies an MLA, but the use of Nota, however, does not invite automatic disqualification.
New Delhi: In a setback to the Congress ahead of Rajya Sabha polls in Gujarat on August 8, the Supreme Court on Thursday refused to restrain the Election Commission from using Nota (None of the Above) option in ballot papers for the elections.
The court rejected the party’s contention that Nota was a “recipe for corruption” and questioned why it had not objected to the provision’s use all these years.
The permission to use Nota in Gujarat may impact the fate of Congress Rajya Sabha nominee Ahmed Patel, political advisor to party president Sonia Gandhi, amid desertions and alleged attempts by the BJP to poach Congress MLAs. Fearing trouble for Mr Patel, the Congress has lodged 44 MLAs from the state in Bengaluru to shield them from alleged poaching bids.
The Congress fears that some MLAs may use Nota to defeat Mr Patel in his contest against BJP nominee Balwantsinh Rajput, who recently quit as a Congress chief whip.
There are three vacancies of RS seats in Gujarat and four candidates, including Mr Patel. The other two BJP candidates, party president Amit Shah and Union minister Smriti Irani, are expected to sail through by virtue of the saffron party’s majority in the legislature.
In case of cross-voting, the anti-defection law disqualifies an MLA, but the use of Nota, however, does not invite automatic disqualification. A defiant MLA may, however, face disciplinary action, including expulsion.
A three-judge bench headed by Justice Dipak Misra rejected the Congress petition and 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 challenge it after the 2014 circular. You can’t wait till you are affected and come to us on the eve of the election.”
“How many elections have been conducted since these circulars? Why didn’t you challenge it then? When it suited you, you didn’t challenge it, but when it doesn’t, you raise objections,” the court told counsel Kapil Sibal and Abhishek Singhvi appearing for petitioner, Shailesh Manubhai Parmar, chief whip of the Congress in Gujarat Assembly.
“We are at a loss to understand why didn’t you challenge these circulars, first of which came long back in January 2014. The circulars clearly said they will be applied as and when elections take place,” said the bench, also comprising Justices Amitav Roy and A.M. Kanwilkar. When Mr Sibal described the use of Nota as a “recipe for corruption”, Justice Roy asked whether he was apprehensive of losing the Rajya Sabha polls in Gujarat.
Senior counsel Ashok Desai, appearing for the EC, submitted that Nota had been used in all the Rajya Sabha polls since the 2014 circular, including those in Maharashtra, Kerala, Odisha and Tamil Nadu.
The petition had sought quashing of the August 1 circular issued by the secretary of the Gujarat Assembly. The circular said that Nota option will be made applicable in the Upper House elections.