Supreme Court Refuses to Stay Use of NOTA in Gujarat Rajya Sabha Polls

Both the Congress and the BJP had opposed the Election Commission’s decision to introduce the NOTA option, saying it went against the constitution.

The NOTA option will be available in the Rajya Sabha elections in Gujarat, the SC said. Credit: PTI

The NOTA option will be available in the Rajya Sabha elections in Gujarat, the SC said. Credit: PTI

New Delhi: The Supreme Court today refused to stay the Election Commission (EC) notification allowing the use of the none of the above (NOTA) vote provision in the upcoming Rajya Sabha polls in Gujarat. This is the first time the NOTA option will be available in the Rajya Sabha polls.

A bench comprising Justices Dipak Misra, Amitava Roy and A.M. Khanwilkar, however, agreed to examine the constitutional validity of the August 1 notification of the EC allowing the NOTA option. “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 poll panel’s notification.

The NOTA provision has been introduced by the poll panel in pursuance of the apex court’s 2014 judgement asking it to consider granting choice of NOTA to the electorate.

The apex court did not agree to the contention of Sibal that NOTA provision “will encourage corruption”.

There are three Rajya Sabha vacancies in Gujarat with four candidates, including Congress leader Ahmed Patel, competing for a seat.

The petition had sought the quashing of the August 1 circular issued by the secretary of the assembly. The circular has stated that the NOTA option would be made applicable in the Upper House elections.

The Congress had alleged that use of the option would be violative of the provisions of the Representation of People’s Act, 1951 and the Conduct of Election Rules, 1961.

The plea had sought the quashing and declaring as “void” the circulars dated January 24, 2014, and November 12, 2015, issued by the EC making available the option.

In the Rajya Sabha polls, 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 casts the ballot for someone else or uses the NOTA option, he cannot be disqualified as a legislator. But 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 the party direction, according to EC rules.

While the Supreme Court ruling pertained to a petition filed by the Congress, both the Congress and the BJP have opposed the use of NOTA in the upcoming elections. The BJP had approached the EC, asking that the NOTA option not be made available in the Gujarat Rajya Sabha polls. Both parties stated that including a NOTA option in an indirect election is ‘against the ethos of the constitution’. According to the Congress, NOTA could only be introduced in Rajya Sabha elections if a constitutional amendment was passed.

The Congress is afraid that more MLAs in Gujarat may defect, especially if they have access to a NOTA vote. Six Congress MLAs have already defected in the run up to the Rajya Sabha elections in the state, for which the party has blamed the BJP’s use “threats and money power”.

Senior Congress leader Patel can win a Rajya Sabha seat if 47 MLAs vote for him. However, his victory is not guaranteed, given that opposition presidential candidate Meira Kumar could garner only 49 of the then 57 Congress MLAs in the state assembly.

(With PTI inputs)