The Supreme Court today refused to stay a notification by the Election Commission introducing the provision of NOTA or ‘None Of The Above’ for voting in the upcoming Rajya Sabha polls. The court was hearing a plea by the Congress against the EC’s decision and had sought urgent hearing in view of the August 8 polls in Gujarat.
The Supreme Court, however, agreed to examine constitutional validity of EC's notification to give an option of NOTA in elections. "Issue notice. We will examine it. We are not going to stay the proceedings," the bench said when senior advocates Kapil Sibal, A M Singhvi and Harin Raval, representing Gujarat Congress chief whip Shailesh Manubhai Parmar, sought an interim stay on the operation of the poll panel's notification.
The apex court did not agree to the contention of Sibal that NOTA provision "will encourage corruption" and also questioned the Congress' silence on the matter since 2014, when the Election Commission had issued the circular. The bench noted that Rajya Sabha elections were held a number of times following the EC's 2014 notification on NOTA, but not once did the Congress protest. "Now that it is not going in your favour, you are challenging it," the court said.
The plea sought quashing and declaring as "void" the circulars dated January 24, 2014 and November 12, 2015 issued by the ECI making available the option. It alleged that the direction was not only "contrary" to the express provisions of Article 80(4) of the Constitution, the RPA and the Rules, but also against a judgement of the apex court in 2006.
“Without a corresponding amendment in the Act and the Rules, any purported administrative action of the Election Commission of India to introduce NOTA is ex-facie illegal, arbitrary and in fact tainted with malafide,” the Congress plea read.
The NOTA provision has been introduced by the poll panel in pursuance of the apex court's 2014 judgement asking it to consider granting the choice to the electorate, the EC told SC in its submission. The poll body further informed the court that several elections have been held following its notification and the provision of NOTA has been used in them.
Appearing on behalf of the Congress on Wednesday, senior counsel Kapil Sibal had sought an urgent hearing before a three-judge bench of Justices including Dipak Misra, Amitav Roy and A M Khanwilkar, stating that there was no statutory provision for NOTA in the ballot paper for the polls and that use of the option would violate the provisions of the Representation of the People Act, 1951, and Conduct of Election Rules, 1961.
The apex court had agreed to take it up on today.
Earlier, the Congress had moved the EC and asked that the provision of NOTA should not be made in the ballot papers for the August 8 elections reasoning it to provide the system of proportional representation ‘nugatory and pointless’ or render it inconsequential.
The Congress’ opposition to this provision, however, is being viewed in political circles as an attempt to save itself from the embarrassment of senior leader Ahmed Patel losing his Rajya Sabha seat. Hit by defections – at least six in the past week – the Congress herded its MLAs from Gujarat to a resort in Bengaluru, to prevent further desertions. However, it now fears that some MLAs may still vote for the NOTA option and bring its tally further down.
In the 182-member Assembly, the strength of the Congress has gone down to 51 from 57 following defection of six of its MLAs in the past week.
The BJP has fielded the party president Amit Shah and Union minister Smriti Irani on two Rajya Sabha seats and the former Congress leader Balwantsinh Rajput on the third seat against Patel from Gujarat.
In the Rajya Sabha polls, the MLAs have to show their ballot paper to an authorised party agent before putting it in ballot box.
If a voter (MLA) defies the party directive and votes for someone else or uses NOTA option, he cannot be disqualified as a legislator. Party whip does not apply to Rajya Sabha elections and a legislator cannot be held accountable under anti-defection laws.
However, the party is free to take disciplinary action including expulsion. The defiant voter can continue to be an MLA and his vote can also not be invalidated for defying party directions, the EC rules say.