Above: An EVM machine

The Supreme Court bench of Justices Dipak Misra, Amitava Roy and AM Khanwilkar on Thursday (August 3) refused to grant interim stay on the use of the None Of The Above (NOTA) button in EVM machines for the Gujarat Rajya Sabha polls scheduled for August 8.

The Congress had objected to this, saying that it was a source of corruption. The problem with Congress is that Ahmed Patel, party president Sonia Gandhi’s political secretary, has been forced into running for the post, but six Gujarat MLAs have already defected to the BJP, while the rest, mostly carrying years of grouse through neglect from the High Command, seem unsure.

The party has airlifted 44 MLAs to a special luxury hotel and has interned them so no more poaching is possible till the election date. However, with no party whip possible in the Rajya Sabha elections, there is a possibility of many of those 44 MLAs hitting the NOTA button, if not directly crossing the floor and hitting the BJP button. The Congress effort at the apex court was to reduce one area of danger.

Justice Amitava Roy asked senior advocate and Congressman Kapil Sibal, arguing for the petitioners: “Many elections have been conducted with this (NOTA) but no one challenged it. Why only you?”

Senior advocate Abhishek Singhvi, also for the petitioners, said: “It is a continuing cause of action. We are challenging it because there is a war at hand.”

Justice Misra asked: “The notification of the Election Commission applies to all over India. So is it only one issue, about whether NOTA will apply to Rajya Sabha elections or not?”

The counsel for the respondents, Election Commission said: “How can the petitioner say that no notice was given? Notice was given on July 14. That notice was for 3 states, Gujarat , West Bengal and Madhya Pradesh. If they had grievance then they should have sent a notice to us.”

Kapil Sibal arguing for the petitioners said: “We sent a notice to them on August 2. This NOTA is a recipe for corruption.”

Justice Roy observed: “The notification by the Election Commission is general in nature and not specific.”

Justice Misra said: “If you had any issue with the 2014 notification then you should have challenged that notification and you should not have waited for its implementation. You cannot say that this notification was not implemented till date hence it should not be implemented now also.”

Attorney General KK Venugopal started arguing, but Justice Misra stopped him by saying: “Does the Union of India have any say on the Election Commission? So please sit down.”

The apex court will issue notice to the Election Commission, but no notice to the Union of India. The court said that however, it will request Venugopal to “assist us”.

The matter will come up again on September 13, but meanwhile, there will be no interim stay on the use of NOTA, the court ordered.

—India Legal Bureau