Bench of Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar denies the Gujarat Congress’s plea to freeze the option.

The ‘None Of The Above’ (NOTA) will continue as an option on the ballot paper in the coming Rajya Sabha elections, with the Supreme Court on Thursday refusing to stay a three-year-old Election Commission circular that introduced it in Rajya Sabha elections.

A Bench of Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar denied the Gujarat Congress’s plea to freeze the option for MLAs voting in the Assembly for the Rajya Sabha polls.

Senior advocate Kapil Sibal, appearing for the Congress, submitted that NOTA would be a “recipe for corruption” and it would be seen as if the court was turning its back on corruption. He raised the concern that MLAs could defy party whips and invalidate their votes by opting for NOTA.

To this, Justice Roy asked Mr. Sibal whether he was apprehensive of losing the Rajya Sabha polls in Gujarat, scheduled for August 8.


NOTA option in Rajya Sabha polls since 2014: EC

The court, however, issued notice to the Election Commission of India, saying the poll body should be heard in detail as any judicial decision on NOTA may have a ripple effect on elections conducted between January 24, 2014 to the present day.

The court asked why the Congress was challenging the circular now while noting, “God knows how many elections were held from January 26, 2014”.

The court specifically recorded Attorney General K.K. Venugopal’s submission that the Union of India does not in anyway interfere with the decisions of the Election Commission and, hence, has no truck in this case.

Consequently, the court issued notice only to the Election Commission for a response on the Gujarat Congress’s challenge of its January 24, 2014 notification. Though the Union was let off as a party in the case, Mr. Venugopal was roped in by the Bench to assist the court.

“Does the Election Commission not consult political parties before issuing such a circular?” Justice Khanwilkar asked at one point even as the court scheduled the case for hearing the Election Commission on September 13.

“The system of NOTA makes the system of proportional representation by means of single transferable vote nugatory and otiose and cannot be made applicable in Rajya Sabha Elections. The use of NOTA cannot be sanctioned by way of the impugned circulars which has the effect of overriding the provisions of Article 80(4), the provisions of Representation of People Act 1951 and the Conduct of Election Rules 1961,” Shailesh Manubhai Parmar, Gujarat Congress whip, submitted in his petition.

The petition said the 2014 circular to introduce NOTA is ex facie illegal, arbitrary and tainted with malafides as an executibe instruction cannot override express statutory provisions.

For example, the 1961 Rules mandates that a candidate should come first in the list on a ballot paper. But here NOTA is listed as the first preference.

It said the Election Commission, “despite being the constitutional watch dog for ensuring free and fair elections, has become a tool in the hands of the ruling dispensation to facilitate violation of the provisions of the Constitution, the provisions of the Act and the Rules”.

The Election Commission issued a Press Note on July 14 on the conduct and schedule of biennial elections to the Council of States for the States of Gujarat (3 seats), West Bengal (6 seats) and Madhya Pradesh (1 seat).