1. Challenge to circulars introducing the None of the Above (NOTA) option in elections for the Council of States. (Para 1 , 2 )
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2018 Supreme(SC) 834
SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, D.Y. Chandrachud, JJ.
Shailesh Manubhai Parmar – Petitioner
Versus
Election Commission of India Through The Chief Election Commissioner & Ors. – Respondents
WRIT PETITION (CIVIL) NO.631 OF 2017
Decided On : 21-08-2018
Important Points
IMPORTANT POINT
Decision to introduce NOTA in Rajya Sabha election is erroneous.
Decision to introduce NOTA in Rajya Sabha election is erroneous.
Subject
Constitutional Law - Election Law
Act Referred
Headnote
(a) Constitution of India – Article 80(4) r/w Section 59, Representation of the People Act, 1951 and Rule 22(1), Rule 30(1) and Rule 70, Conduct of Election Rules, 1961 – Provision of NOTA – Introduced to maintain secrecy of voting and exercising the right of voting in favour of or against the motion or resolution – Such a right implies right to remain neutral as well – Election Commission directed to introduce NOTA in elections. (Para 9, 10, 11)
(2013) 10 SCC 1; (1993) 4 SCC 234 – Relied upon
(b) Election laws – General election to Assemblies and Lok Sabha; and election to Rajya Sabha – Distinction – In the former voters directly elect their representatives – In the latter such elected representative elect members of Rajya Sabha – Former requires secret voting while the latter is by open ballot and proportionate voting – The former is free voting as per choice of the voter, one vote one value – The latter is multiple vote multiple value and on party lines where cross voting etc is required to avoided/eliminated – Elector in Rajya Sabha election is not an individual voter – He is representative of the State – Not representing a constituency but the State – Circular of Election Commission introducing NOTA in Rajya Sabha elections held erroneous – Article 324, Constitution of India. (Para 12, 19, 23, 24, 27)
(2006) 7 SCC 1; (2002) 1 SCC 499; (1955) 2 SCR 225; (1982) 1 SCC 39; 1994 Supp (2) SCC 641; 1992 Supp (2) SCC 651; (2014) 9 SCC 1 – Relied upon
Facts of the case:
The availability of the option “None of the Above” (NOTA) in election to the Rajya Sabha is under challenge in this writ petition.
Finding of the Court:
Decision to introduce NOTA in Rajya Sabha election is erroneous.
Result: Petition allowed.
Legal Category Hierarchy
Table of Contents
2. Dispute over whether NOTA is applicable to indirect elections under Article 80(4) and the Representation of the People Act, 1951, versus its impact on party discipline. (Para 2 , 3 )
3. Distinction between direct and indirect elections — proportional representation and open ballots in indirect elections prioritize party discipline and prevent defection over the right to negative voting. (Para 5 , 6 , 7 , 8 , 12 , 13 , 14 , 18 , 19 , 23 , 27 )
4. NOTA is incompatible with indirect elections involving proportional representation and the Tenth Schedule, as it undermines party discipline and the quantified, transferable nature of votes. (Para 23 , 27 )
5. Writ petition allowed and circulars introducing NOTA for elections to the Council of States quashed. (Para 28 )
6. Is the NOTA option applicable to indirect elections for the Council of States?
No. The court held that NOTA is inapplicable to indirect elections because they rely on proportional representation and open ballots to ensure party discipline, unlike direct constituency-based elections where NOTA serves to express voter disapproval. (Para 18 , 23 , 27 )
7. How does the introduction of NOTA affect the anti-defection provisions of the Tenth Schedule?
NOTA would indirectly facilitate defection by allowing electors to bypass party directions, thereby undermining the foundational values of party discipline and the legal framework governing disqualification for defection. (Para 19 , 20 , 21 , 22 , 23 )
8. What is the scope of the Election Commission's powers under Article 324 regarding the introduction of new voting options?
While Article 324 is a reservoir of power for ensuring free and fair elections, the Commission must act within the legal framework established by Parliament and cannot introduce concepts that violate existing constitutional or statutory schemes. (Para 25 , 26 )
9. What is the fundamental difference between voting in direct and indirect elections regarding secrecy and representation?
Direct elections are constituency-based and rely on secret ballots. Indirect elections for the Council of States use proportional representation and open ballots to prevent corruption and ensure party discipline, as electors represent the State rather than a specific constituency. (Para 12 , 13 , 14 , 18 )
JUDGMENT
Dipak Misra, CJI.
In the instant writ petition preferred under Article 32 of the Constitution of India, the petitioner who is the Chief Whip of the Indian National Congress party in Gujarat Legislative Assembly challenges the circular dated 1st August, 2017 issued by the Secretary, Gujarat Legislature Secretariat, the Respondent No.3 herein, in relation to the conduct of elections for the Council of States. Though the circular covers various aspects, he has challenged the availability of the option “None of the Above” (NOTA).
2. It is asserted that the Election Commission of India had issued directions to the Chief Electoral Officers of all the States and the Union Territories (except Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu and Lakshadweep) directing that the option of NOTA could be applicable for elections in the Rajya Sabha and the said option shall be printed on the ballot paper in the language or languages in which the ballot paper is printed as per the directions issued by the Election Commission in pursuance of sub-rule (1) of Rule 22 and sub-rule (1) of Rule 30 read with Rule 70 of the Conduct of Election Rules, 1961 (for short, ‘the Rules’). Reference has been made to the communication dated 12th November, 2015 by the 1st respondent to the Chief Electoral Officers of all the States giving further directions regarding the manner of voting in preferential system but we are only concerned with the applicability of NOTA to the Rajya Sabha elections. It is contended in the petition that the circulars issued by the Election Commission of India introducing NOTA to the elections in respect of members of the Rajya Sabha are contrary to the mandate of Article 80(4) of the Constitution of India and the decision of this Court in People’s Union for Civil Liberties and another v. Union of India and another (PUCL), (2013) 10 SCC 1. It does not lend any support to the understanding of the Election Commission for introducing such an option in respect of Rajya Sabha elections. It is averred that Section 59 of the Representation of the People Act, 1951 (for brevity, ‘the 1951 Act’) provides for the manner of voting at elections and Section 169 empowers the Central Government, after consulting the Election Commission, to make rules for carrying out the purposes of this Act. Reference has been made to Part VI of the Rules which makes special provisions for voting at elections by Assembly members and Rule 70 provides that Rules 37(8) to 40A shall apply. Relying on the interpretation of the said Rules, it is urged that the scheme of the Rules referred to above and Rules 71 to 76 do not remotely conceive of NOTA but the same has been brought in by issuance of circular by the Election Commission and, hence, the same is unconstitutional.
3. A counter affidavit has been filed by the 1st respondent contending, inter alia, that the constitutional courts do not interdict in the election process and challenge can only be made after the election is over by filing an election petition before the appropriate court; that as per the pronouncement in PUCL’s case, there is no distinction between direct and indirect elections and, hence, the provision of NOTA in the ballot paper of the elections has been made applicable by the Election Commission to Rajya Sabha to effectuate the right of electors guaranteed to them under Section 79A of the Act; that though there is no need for secrecy in Rajya Sahba elections because the law makes it open voting, yet that does not take away the right of the elector not to vote by expressing the option of NOTA; that even assuming the position that the judgment in PUCL’s case does not indicate that this Court ever intended to apply the option of NOTA to Rajya Sabha elections, yet the Election Commission has issued letter dated 24th January, 2014 and further reiterated by letter dated 12th November, 2015 that the option of NOTA would be applicable to elections in Rajya Sabha; and tha
