The Supreme Court on August 21, 2018 ruled that the ‘None of The Above’ (NOTA) option will not be applicable for voting in the Rajya Sabha elections.
The ruling was made by a bench of Justices comprising CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud. The bench held that the NOTA option is meant only for universal adult suffrage and direct elections and not for the polls held by the system of proportional representation by means of the single transferable vote as done in the Rajya Sabha.
The judgment came on a petition filed 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 2017, in which Congress leader Ahmed Patel was contesting.
The trigger for the petition was the decision of the Election Commission of India (ECI) to use NOTA for Rajya Sabha elections in Gujarat in 2017. The ECI had issued two circulars 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.
• The petition, represented by senior advocate AM Singhvi and advocate Devadatt Kamat, got complete support from the central government through Attorney General KK Venugopal.
• The PIL’s advocates argued 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.
• Advocate Singhvi argued that the system of NOTA makes the system of proportional representation by means of single transferable vote lose significance.
• He argued that 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.
• He said that the circulars annulled 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.
• ECI’s advocate Amit Sharma countered the arguments by saying that a person, along with a right to vote, had the right not to vote.
Following the ruling, the CJI indicated that the court may rule against the two circulars issued by the Election Commission of India sanctioning the use of NOTA.
The option of NOTA was introduced in India after the Supreme Court’s judgment in PUCL v Union of India, dated September 27, 2013.
Parmar had contended that a plain reading of the ruling, especially paragraphs 53 and 63, made it amply clear that NOTA was to be applied to direct and general elections and not indirect elections like that to the Rajya Sabha. In this type of election, there is open voting with the system of proportional representation by means of the single transferable vote as mandated by Article 80(4) of the Constitution.
In Kuldip Nayar v Union of India, a Constitution Bench comprising five judges had held that in Rajya Sabha elections, the MLAs are duty bound to support the candidate put up by the political party to which they are affiliated.
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