Setback to Congress as SC refuses to stay EC notification allowing NOTA in Rajya Sabha polls in Gujarat

New Delhi: In a big setback to Congress, the Supreme Court on Thursday refused to stay the Election Commission notification allowing `None of the Above` (NOTA) option for the upcoming Rajya Sabha elections in Gujarat.

The apex court passed its order while responding to a plea filed by the Gujarat unit of the Congress challenging the introduction of NOTA option for the upcoming Rajya Sabha elections in the state.

The apex court, however, agreed to examine constitutional validity of EC's notification to give an option of NOTA in elections. 

During the hearing, the apex court also asked the Gujarat Congress and said, ''why are you so late in raising the question as EC issued notification in January 2014.''

The Congress had on August 1 moved the EC and demanded that the provision of NOTA should not be made in the ballot papers for the August 08 Rajya Sabha elections as it would render the system of proportional representation "nugatory and otiose" - or render it inconsequential.

The party said that use of NOTA option during the Rajya Sabha elections was contrary to the mandate of the Constitution, the Representation of People's Act, the conduct of election rules as also judgements of the Supreme Court.

The EC has, however, said the panel had made it clear in its communications following a Supreme Court judgement of 2013 that NOTA option would be applicable in the Rajya Sabha elections.

The Congress Party moved the apex court against the decision of the poll body on August 2.

The BJP also met the Election Commission over the removal of NOTA or `None of the Above` option for voters in the Rajya Sabha elections.

The BJP has fielded its national president Amit Shah, Union minister Smriti Irani and Balwantsinh Rajput for the three Rajya Sabha seats from Gujarat against the lone Congress candidate Ahmed Patel.

Chief whip of the Congress in the Gujarat Assembly Shailesh Manubhai Parmar in his petition has sought to quash of the August 01 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 petition has 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.

"Without a corresponding amendment to the Act and the Rules any purported administrative action of the Election Commission of India to introduce NOTA is ex-facie illegal, arbitrary and in fact tainted with malafide," it claimed.

The petition alleged that the ECI, which despite being the constitutional watchdog 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 Act and the Rules".

It said the All India Congress Committee (AICC) had made a representation before the ECI "highlighting the illegal nature of the circulars" and requesting the poll panel to refrain from implementing the same to ensure free and fair elections, but the state Assembly issued a circular making available the NOTA choice.

The plea sought to quash and declare as "void" the circulars dated January 24, 2014, and November 12, 2015, issued by the ECI making available the option.

It alleged that the direction was not only "contrary" to the express provisions of Article 80(4) of the Constitution, the RPA and the Rules, but also against a judgement of the apex court in 2006.

The petition claimed that the circulars on NOTA defeated the system of proportional representation by means of a single transferable vote.

The direction to have NOTA in the elections was enforced in January 2014 after the Supreme Court in 2013 made it mandatory to have the option in the electronic voting machines (EVMs).

In the Rajya Sabha polls, the MLAs have to show their ballot paper to an authorised party agent before putting it in the 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 the ECI rules.

(With Agency inputs)