SC refuses to stay NOTA option in RS elections

The Supreme Court on Thursday refused to stay a Gujarat state Assembly's decision to introduce NOTA in the Rajya Sabha elections scheduled for August 8.

A three-judge bench presided over by Justice Dipak Misra questioned senior advocate Kapil Sibal, representing petitioner party chief whip Shailesh Maubhai Parmar, over the delay in challenging January 24, 2014 notifications by Election Commission in August 2017.

The court, however, put the matter for considering Constitutional validity of notifications in September.

Though Sibal contended Parmar as petitioner was not affected with 2014 circular as no RS polls took place in Gujarat, the bench said but so many elections for seats in Council of States were conducted since then.

"You cannot say that you remained dormant in all this time. You are a political party. Any legislator could have challenged it," the bench, comprising Justices Amitava Roy and A M Khanwilkar, said.

"Notification by the EC is not state specific. Any conscientious, politically active person could have challenged it. After 2014, how many elections were held? When it suited you, you did not challenge it," the bench asked further.

Sibal, supported by senior advocates Abhishek M Singhvi and Vivek Tankha, tried to reason out that the petitioner got affected only when circular was issued state Assembly Secretary for bringing in NOTA in the impending polls.

"This is a recipe for corruption...You can't encourage corruption like this," Sibal contended.  

The court, however, remained unimpressed as senior advocate Ashok Desai, maintained that many elections have been conducted with NOTA since 2014. He quipped that Sibal and Tankha, both RS MPs, got elected through ballot papers having NOTA.

The court also noted in RS polls, electors as rules show their ballot papers to party representative, so there would not be any difficulty.

The impending RS polls in Gujarat has thrown a somewhat keen battle with both BJP and Congress putting a lot prestige into it.

On three seats, BJP president Amit Shah, Union Minister Smriti Irani, senior Congress leader Ahmed Patel and Balwantsinh Rajput, a Congress defector, have filed their nomination papers.

The court issued notice to Election Commission and sought its response within two weeks. It also gave two weeks to petitioner to file rejoinder.

In his plea, Parmar claimed that the EC has become “a tool in the hands of ruling dispensation to facilitate violation of the Constitution” and provisions of the Representation of People Act and the Conduct of Election Rules. It said the apex court's 2013 ruling for use of NOTA was for general elections and not for indirect polls like Rajya Sabha.

The petitioner challenged the order issued by Secretary of Gujarat Assembly on August 1 for providing option of 'None of the above' in the ballot papers for conducting elections for four Rajya Sabha seats.

The petition drafted by advocate Devdutt Kamat and filed by Farrukh Rasheed challenged the legal validity of the other circulars of January 24, 2014 and November 12, 2015 issued by Election Commission, for making NOTA applicable in Rajya Sabha elections.

“The Election Commission cannot by executive instructions/circulars seek to override the express provisions of the Act and the Rules. Without a corresponding amendment in the Representation of People Act and Rules any purported administrative action to introduce NOTA is ex facie illegal, arbitrary and in fact tainted with malafides,” the petition contended.

“Despite being the constitutional watch dog for ensuring free and fair elections, the EC 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,” it added.

The petitioner maintained that the apex court judgment in PUCL versus Union of India, 2013 was for the use of NOTA in the context of direct elections.

“The use of NOTA in indirect elections is in direct conflict with and militates against the system of proportional representation by means of single transferable vote envisaged by the Constitution, the Representation of People’s Act and the Conduct of Election Rules, 1961,” it contended.

In view of the apex court's judgement in the 'Kuldip Nayar versus Union of India', (2006), the party MLAs are bound to vote for the candidates affliated to the political party, it added.