Constitution of India:
Art. 80(4) – Election for Council of States – Applicability of the option “None of the Above” (NOTA) – Election Commission introducing NOTA to Council of States elections – Challenged u/Art. 32 of the Constitution – Held: NOTA was introduced for direct elections i.e. of Parliament and State Legislative Assemblies – There is distinction between direct election and indirect election – Option of NOTA to Council of States election, which is indirect election, would not only undermine the purity of democracy but also serve the satan of defection and corruption. Allowing the Writ Petition, the Court
HELD: 1. Election Commission has treated the pronouncement in *PUCL’s case as its source of power. The decision in *PUCL relates to direct elections. The Court, in fact, has clearly observed that the directions pertain to the Parliament and State Legislative Assemblies which is constituency based and grants an option to the voters to exercise the benefit of NOTA. In the said decision, emphasis has been laid on universal adult suffrage conferred on the citizens of India by the Constitution and the entitlement of a voter to come to the polling booth and decide to vote for any candidate or to exercise the right not to vote. There has been distinction between direct and indirect elections.[Para 18] [92-D-F]
Kuldip Nayar and Others v. Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1 – followed.
2. In election for Council of States, there is voting by open ballot and it has been so introduced to sustain the foundational values of party discipline and to avoid any kind of cross voting thereby ensuring purity in the election process. They have been treated as core values of democracy and fair election. In a voting for members of the Council of States, the nature of voting by an elector is a grave concern. It is because in such an election, there is a party whip and the elector is bound to obey the command of the party. The party discipline in this kind of election is of extreme significance, for that is the fulcrum of the existence of political parties. It is essential in a parliamentary democracy. The thought of cross voting and corruption is obnoxious in such a voting. [Para 19] [93-E-G]
Ravi S. Naik v. Union of India and Others (1994) 2 Suppl. SCC 641 : [1994] 1 SCR 754 – relied on. Kihoto Hollohan v. Zachillhu and Others (1992) 2 Suppl. SCC 651 : [1992] 1 SCR 686 – referred to.
3. The introduction of the Tenth Schedule in the Constitution, by the Constitution (Fifty-Second Amendment) Act, 1985 was introduced to eradicate the evil of political defection. On a keen scrutiny of the Statement of Objects and Reasons and the concept of disqualification to rule out defection, it is clear that the same is indirectly defeated by the introduction of NOTA. [Para 22] [95-F; 96-B]
4. In a democracy, the purity of election is categorically imperative. The democratic body polity stipulates that the quintessential idea of democracy is abhorrent to corruption and laws emphasize on prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. The purity of democracy does not withstand anything that has the potential to create an incurable chasm in the backbone of a democratic setup. The law is meant to eradicate the same. When one analyses the exercise of choice of NOTA in the voting process of the Council of States where open ballot is permissible and secrecy of voting has no room and further where the discipline of the political party/parties matters, it is clear that such choice will have a negative impact.[Para 23] [96-B-D] Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965 – relied on.
5. An elector, though a single voter, has a quantified value of his vote and the surplus votes are transferable. There is existence of a formula for determining the value of the vote. The concept of vote being transferable has a different connotation. A candidate after being elected becomes a representative of the State and does not represent a particular constituency. The cumulative effect of all these aspects clearly conveys that the introduction of NOTA to the election process for electing members of the Council of States will be an anathema to the fundamental criterion of democracy which is a basic feature of the Constitution. [Para 23] [96-E-F]
6. The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the Tenth Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection. It is a well settled principle that what cannot be done directly, cannot be done indirectly. If NOTA is allowed in the election of the members to the Council of States, the prohibited aspect of defection would indirectly usher in with immense vigour. [Para 23] [96-G-H; 97-A-B]
7. The purpose of introduction of NOTA in *PUCL’s case is that a provision for negative voting can send a clear message to the political parties and what a voter thinks about the candidates in the fray. Thus, the said decision is directly relatable to a direct election, one man, one vote and one value. [Para 24] [97-B-C]
8. The Election Commission has to act within the four corners of law made by the Parliament. That apart, if any direction is issued by this Court interpreting a provision for furtherance of purity of election, it will be obligatory on the part of the Commission to act in accordance with the same. The Commission cannot be allowed to conceive of certain concepts or ideas or, for that matter, think of a different dimension which would not fit into the legal framework. [Para 26] [99-A-B]
9. The introduction of NOTA in indirect elections completely ignores the role of an elector in such an election and fully destroys the democratic value. The option of NOTA may serve as an elixir in direct elections but in respect of the election to the Council of States which is a different one, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption. [Para 27] [99-E, F-G] *People’s Union for Civil Liberties and Another v. Union of India and Another (PUCL) (2013) 10 SCC 1 : [2013] 12 SCR 283 ; Ananga Uday Singh Deo v. Ranga Nath Mishra and Others (2002) 1 SCC 499 : [2001] 4 Suppl. SCR 88 ; Lily Thomas v. Speaker, Lok Sabha and Others (1993) 4 SCC 234 : [1993] 1 Suppl. SCR 791 ; Ram Jawaya Kapur v. State of Punjab [1955] 2 SCR 225 ; Bishambhar Dayal Chandra Mohan and Others v. State of Uttar Pradesh and Others (1982) 1 SCC 39 : [1982] 1 SCR 1137 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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