IMPORTANT POINT
Decision to introduce NOTA in Rajya Sabha election is erroneous.

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 da