The Supreme Court has ruled that though this option may be “an elixir” in direct polls, it could undermine the purity of democracy if allowed in the Rajya Sabha polls

~By India Legal Bureau

In an embarrassment for the Election Commission of India, the Supreme Court on August 21 quashed a notification issued by the poll panel in January 2014—later modified in November 2015—which allowed members of legislative assemblies to cast a negative vote in elections for the Rajya Sabha.

The apex court bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, while delivering its verdict in Shailesh Manubhai Parmar vs Election Commission, held that allowing legislators to vote “None of the Above” (NOTA) in the Rajya Sabha polls “defeats the fairness ingrained in an indirect election”.

The judgment, authored by Chief Justice Misra, however, asserted that “the option of NOTA may serve as an elixir in direct elections”—polls in which the common citizen votes to elect a councillor, MLA or MP. The poll process for electing Rajya Sabha members, the verdict underscored, was one in which negative voting “would not only undermine the purity of democracy but also serve the Satan of defection and corruption”.

The case was filed by Gujarat Congress leader Shailesh Parmar who had, in the run-up to last year’s hotly contested Rajya Sabha elections in the state, challenged the EC’s decision to introduce negative voting in the polls for the Council of States.

NOTA was introduced in the Lok Sabha polls following a 2013 decision of the Supreme Court in People’s Union for Civil Liberties (PUCL) vs Union of India. The EC had, the following year, extended this option to the Rajya Sabha. Ever since, elections to as many as 222 Rajya Sabha seats were held with the inclusion of NOTA in the ballots.

Senior advocate Abhishek Manu Singhvi, who appeared for Parmar, argued that allowing NOTA in Rajya Sabha polls “creates an anomalous situation and brings in horse-trading, corruption and use of
extra-constitutional methods which were sought to be avoided by the introduction of the Tenth Schedule in the Constitution through the 52nd Amendment in 1985”.

Chief Justice Misra said in his verdict: “The introduction of NOTA… will be an anathema to the fundamental criterion of democracy.” He dubbed “absolutely erroneous” the interpretation of the PUCL verdict by the EC while allowing negative voting for Rajya Sabha polls.

“The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector… but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection,” the verdict said.

It further said that “NOTA will destroy the concept of value of a vote and encourage defection”. It added: “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.”