Rajya Sabha Elections: Gujarat Congress challenges NOTA rule in Supreme Court

Today, a Supreme Court Bench headed by Justice Dipak Misra agreed to hear a petition filed by Shailesh Manubhai Parmar, Chief Whip of the Indian National Congress in the Gujarat Legislative Assembly challenging the Election Commission’s decision to use “None Of The Above” option in this year’s Rajya Sabha elections.

Parmar has challenged the Election Commission’s notifications and the Assembly’s circular dated August 1, which make NOTA option applicable to this year’s Rajya Sabha elections, which are to be held on August 8. He has claimed to be surprised by the contents of the same, since Rajya Sabha elections are being held in Gujarat after a period of 20 years.

The petition was drawn up by advocates Devadatt Kamat and Javedur Rahman and settled by Senior Advocate Kapil Sibal.

The applicability of NOTA to the Rajya Sabha elections is in ex facie violation of the provisions of Article 80 (4) of the Constitution, the Representation of People’s Act 1951, the Conduct of Election Rules 1961, and two decisions of the Supreme Court, the petition contends.

It furthers states that 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 Act and Rules, any purported administrative action to introduce NOTA is ex facie illegal, arbitrary and tainted with mala fides.

NOTA was introduced after the Supreme Court’s judgement in PUCL v Union of India, dated 27 September, 2013.

Parmar contends that a plain reading of the ruling, especially paragraphs 53 and 63, makes 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. The petition states,

“NOTA makes the very system of proportional representation by means of single transferable vote nugatory and otiose and cannot be made applicable in Rajya Sabha Elections.”

Moreover, in Kuldip Nayar v Union of India, a Constitution bench of five judges held that in Rajya Sabha elections, MLAs are duty bound to support the candidate put up by the political party to which they are affiliated. The Court in that case emphasized the rationale behind proportional representation and the need for maintaining the sanctity of members of the political party by ensuring party discipline.

Therefore, introducing NOTA in Rajya Sabha elections will have 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 the party discipline and the importance of political parties which the Court has held as the basic feature of the Constitution.

The Election Commission, being a “constitutional watchdog” for ensuring free and fair elections has committed a grave travesty by issuing administrative instructions which fly in the face of constitutional and legal provisions, Parmar’s petition contends.

The petition urges the Supreme Court to strike down as void the notifications and circular issued by the Election Commission and the Gujarat Vidhan Sabha.

The case is to be heard tomorrow.

Read the writ petition: