The Leaflet

| @theleaflet_in | August 21,2018

In the recent case of Shailesh Manubbhai Parmar v. Election Commision of India, the Supreme Court has held that “None of the Above” or NOTA is inapplicable to Rajya Sabha elections. A bench led by Chief Justice Dipak Misra, and comprising Justices AM Khanwilkar and DY Chandrachud, delivered the verdict.

The Petitioner in the current case, Shailesh Parmar, is the Chief Whip of the Indian National Congress party in Gujarat Legislative Assembly. He challenged a circular dated August 1, 2017 in relation to the availability of the option of NOTA. The respondents being the Election Commission (EC) of India assert that they had issued directions to the Chief Electoral Officers of all States and Union Territories directing that the option of NOTA could be applicable for elections in the Rajya Sabha.

The Petitioner contended that the EC’s circular is contrary to the mandate of Article 80 (4) of the Constitution of India and the case of People’s Union for Civil Liberties (PUCL) and another v. Union of India. They further argue that the EC’s circular is unconstitutionas do not even remotely conceive of NOTA

In response to this, the Petitioner contended that the EC’s circular is contrary to the mandate of Article 80 (4) of the Constitution of India and the case of People’s Union for Civil Liberties (PUCL) and another v. Union of India. They further argue that the EC’s circular is unconstitutionas do not even remotely conceive of NOTA. The whip contended that the disclosure of choice or fear/ compulsion/ political pressure under a whip is against the concept of free and fair elections, and that immunity from such fear/ compulsion is only ensured on the concept of the principle of secret ballot.

The cumulative effect of the cases was held to be clearly conveying the fact that the introduction of NOTA would be contrary to the fundamental criteria of a democracy, which is a basic feature of the Constitution

The Court evaluated Article 80 (4) of the Constitution, which concerns the composition of the Council of States. Several case laws were cited, regarding the issue of the nature of representation in the Council of States. The cumulative effect of the cases was held to be clearly conveying the fact that the introduction of NOTA woacy, which is a basic feature of the Constitution.

The argument which the EC stated that the PUCL judgment facilitated the introduction of NOTA failed in the eyes of the Court, since the judgment did not grant the same, or any ancillary stipulations under Article 80 or the Tenth Schedule of the Constitution. While PUCL’s case concerned direct elections, regarding the concept of “one man, one vote”, rather than that of indirect elections as occurring in the Rajya Sabha.

The Court held that if NOTA would be allowed in the election of the members to the Council of States, the prohibited aspect of defection would be indirectly ushered in

The Court held that if NOTA would be allowed in the election of the members to the Council of States, the prohibited aspect of defection would be indirectly ushered in. The domino effect of defection is further, corruption and hence the consequences indicate that the practical application of fairness ingrained in an indirect elections. The value of the elector’s vote in that situation was held to be invaluable.

The EC was directed to act “within the four corners of law” made by the Parliament, and the directions of Courts to preserve the purity of elections – rather than conceive their own ideas. Hence, the petitioner’s writ was allowed, and the circular issued by the EC introducing NOT in respect of elections to the Council of States was quashed.

Read Supreme Court’s order rejecting NOTA for Rajya Sabha polls.

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