The political storm in Gujarat against the option of NOTA (None of the Above) has now reached the Supreme Court, with a Petition filed by Congress Chief Whip Shailesh Manubhai Parmar.
Mr. Parmar submits that the Election Commission’s decision to introduce the option is “ex facie illegal”, and is against the provisions of Article 80(4) of the Constitution (Regarding election to the Council of States), the Representation of People Act, 1951 and the Conduct of Election Rules, 1961.
It further alleges that the decision to include the option was mala fide, and alleges, “The instant writ petition is directed against the ex facie illegal directions of the Respondent No.1 which 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.”
Such provisions, it says, cannot be bypassed by an executive order passed by the Election Commission of India. It can only be done with requisite amendments to the Act and the Rules.
The Petition further contends that the Supreme Court judgment in the case of PUCL v. Union of India, 2013 (10) SCC 1 was rendered in the context of general elections, and the same cannot be applied to the case at hand.
“…there is a distinct difference in the manner and mechanism of elections to the Lok Sabha vis-a-vis Rajya Sabha. While the former is a case of direct elections, where the exercise of NOTA is an expression of the will of the people, in the latter case i.e. in case of elections to Rajya Sabha, it defeats and renders nugatory the mechanism of proportional representation by means of a single transferable vote as envisaged under the Constitution. As such allowing the option of NOTA for elections to Rajya Sabha results in irreparable loss…,” it contends.
It is also submitted that the use of NOTA completely militates against the express provisions of Article 80(4), the provisions of the Representation of People Act 1951 and the Conduct of Election Rules, 1961.
"Article 80(4) provides for indirect election to the Rajya Sabha by the Members of the Legislative Assembly of the State in accordance with the system of proportional representation by single transferable vote. The system of NOTA is entirely incompatible with the system of proportional representation envisaged by the Constitution".
According to the petition, the system of NOTA makes the system of proportional representation by means of single transferable vote nugatory and otiose and cannot be made applicable in Rajya Sabha Elections. The use of NOTA cannot be sanctioned by way of the impugned circulars which has the effect of overriding the provisions of Article 80(4), the provisions of Representation of People Act 1951 and the Conduct of Election Rules 1961.
"In any event, the use of NOTA cannot be made applicable without the necessary amendments in the Act and Rules and any use of NOTA would directly violate Rule 37 A(2) in particular and other Rules mentioned herein above. The PUCL judgment was only concerned with direct elections and the implementation of NOTA option in the General Elections. The ratio thereof cannot apply to indirect elections which is not based on universal adult suffrage but is on the basis of a collegium of elected representatives casting open ballot by a system of proportional representation by means of single transferable vote".
Mr. Parmar therefore demands that the impugned circular be quashed, as being against the provisions of the prevailing Act and Rules made there-under. An interim stay has also been demanded, in view of the elections to be held on 8 August.