NOTA- Supreme Court Quashes Circular for NOTA Option in Rajya Sabha Elections

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August 21, 2018

Case name: Shailesh Manubhai Parmar v. Election Commission of India through the Chief Election Commissioner & Ors.

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Date of Judgment- August 21, 2018

The Petitioner in the case challenged the circular issued by the Election Commission, whereby the Commission had issued directions to the Chief Electoral Officers of all the States and the Union Territories that the option of NOTA (“None of the Above”) could be applicable for elections in the Rajya Sabha and the said option shall be printed on the ballot paper.

The Three-Judge Bench of the Supreme Court headed by Chief Justice Dipak Misra has today held that NOTA shall not be permissible for Rajya Sabha Elections and accordingly quashed the Elcetion Commission’s Circular. The Apex Court in the case made inter alia the following observations:

That NOTA will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder. It has to be remembered that democracy garners its strength from the citizenry trust which is sustained only on the foundational pillars of purity, integrity, probity and rectitude and such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces.

That the introduction of NOTA in indirect elections may on a first glance tempt the intellect but on a keen scrutiny, it falls to the ground, for it completely ignores the role of an elector in such an election and fully destroys the democratic value. It may be stated with profit that the idea may look attractive but its practical application defeats the fairness ingrained in an indirect election. More so where the elector‘s vote has value and the value of the vote is transferrable.

That the option of NOTA may serve as an elixir in direct elections but in respect of the election to the Council of States which is a different one, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption.

When one analyses the exercise of choice of NOTA in the voting process of the Council of States where open ballot is permissible and secrecy of voting has no room and further where the discipline of the political party/parties matters, it is clear that such choice will have a negative impact.

An elector, though a single voter, has a quantified value of his vote and the surplus votes are transferable. There is existence of a formula for determining the value of the vote. The concept of vote being transferable has a different connotation. It further needs to be stated that a candidate after being elected becomes a representative of the State and does not represent a particular constituency.

The cumulative effect of all these aspects clearly conveys that the introduction of NOTA to the election process for electing members of the Council of States will be an anathema to the fundamental criterion of democracy which is a basic feature of the Constitution. It can be stated without any fear of contradiction that the provisions for introduction of NOTA as conceived by the Election Commission.

The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the Tenth Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection. It is a well settled principle that what cannot be done directly, cannot be done indirectly. To elaborate, if NOTA is allowed in the election of the members to the Council of States, the prohibited aspect of defection would indirectly usher in with immense vigour.

The Supreme Court’s judgment can be accessed here.