December 25, 2019
In view of the categorical observations of the court
In view of the categorical observations of the court in the Kuldip Nayar case
rendered in the context of Rajya Sabha elections, no direction ought to have
been given by the commission to introduce Nota, which has the effect of not only
upsetting and destroying the nature of proportional representation by means of
single transferable vote but also will have the effect of breaching party
discipline by virtually amending the 10th Schedule of the Constitution of India
(anti-defection law) through an administrative order thereby diminishing the
importance of political parties which the court has held to be a part of the
basic feature of the Constitution.
On the other hand, when it comes to electing
members to the Rajya Sabha, Article 80(4) of the Constitution provides for
indirect election by the members of the legislative Assembly of a state in
accordance with the system of proportional representation by "a†single
transferable vote. Though the Supreme Court has refused to stay the use of Nota
in the Gujarat Rajya Sabha elections, it has nonetheless agreed to examine the
constitutional validity of the Election Commission’s administrative diktat.In
any event, the use of Nota cannot be made applicable without the necessary
amendments in the Act and Rules.
The ruling held: "It cannot be forgotten that
the existence of political parties is an essential feature of our parliamentary
democracy and that it can be a matter of concern for Parliament if it finds that
electors were resorting to cross-voting under the garb of conscience voting,
flouting party discipline in the name of secrecy of voting. The judgment
delineated that in a direct election a voters must be given an option to choose
"None of the above†to express their dissatisfaction with all the candidates/
political parties on the ballot. In Kuldip Nayar v.
In matters of election to the
Rajya Sabha, MLAs are also duty bound to support the candidate put up by the
political party to which they are affiliated. Union of India 2013 (10) SCC 1
directed the use of Nota in the context of direct elections to the Lok Sabha and
the respective state Assemblies. Breach of discipline of political parties for
collateral and corrupt considerations removes the faith of the people in a
multi-party democracy. Somehow this administrative direction escaped the
attention of lawmakers until it got flagged during the run-up to the election in
Gujarat scheduled for August 8, 2017. In matters of election to the Rajya Sabha,
MLAs are also duty bound to support the candidate put up by the political party
to which they are affiliated. Accordingly, the court directed the EC to provide
necessary provision in the ballot papers/EVMs for providing the Nota button.
Further, Section 59 of the Representation of the People Act 1951 provides for
the manner of election and reads as follows: Manner of voting at electionsi) At
every election where a poll is taken, votes shall be given by ballot in such
manner as may be prescribed, (and, save as expressly provided by this Act, no
votes shall be received by proxy) (Provided that the votes at every election to
fill a seat or seats in the Council of States shall be given by open ballot. In
this judgment the court observed: "Universal adult suffrage conferred on the
citizens of India by the Constitution has made it possible for these millions of
individual voters to go to the polls and thus participate in the governance of
our countryâ€. Union of India (2006) 7 SCC 1; a Constitution bench of the Supreme
Court categorically observed that the declarations under Form 2-B read with 2-C
binds the MLAs to vote for the candidate set up by the political party to which
they are affiliated. The court further emphasised the rationale behind
proportional representation and the need for maintaining the sanctity of members
of the political party by ensuring party discipline. In any event, the use of
Nota cannot be made applicable without the necessary amendments in the Act and
Rules. The use of Nota cannot be sanctioned by way of a circular dated January
24, 2014, which in any event cannot override the provisions of Article 80(4),
the provisions of the Act and the Rules.
Political parties are the sine qua non
of parliamentary democracy in our country and the protection of party discipline
can be introduced as an essential feature of the purity of elections in case of
indirect elections. Parliamentary democracy and a multi-party system are an
inherent part of the basic structure of the Indian Constitution.â€While
upholding the validity of an open ballot, the court categorically observed:
"owing to the impugned amendment… a voter has to disclose the way he has cast
the vote to the representative of his partyâ€.To put things in perspective, the
Supreme Court in PUCL v. It clarified the process of voting by another
clarificatory directive on November 12, 2015.
The court also deprecated the
practice of cross-voting in Rajya Sabha elections and held that it is the duty
of Parliament to take cognisance of the misbehaviour and misconduct and
legislate remedial China Order
made Aluminum ladder measures for the same. Subsequently, necessary
amendments were made in the respective statutes to give effect to the orders of
the court. It is fairly evident therefore, that the system of Nota makes the
system of proportional representation by means of the single transferable vote
meaningless, cannot be made applicable in Rajya Sabha elections.
This would
weaken party discipline over errant legislators.)The use of Nota in indirect
elections is thus, in direct conflict with and militates against the system of
proportional representation by means of the single transferable vote envisaged
by the Constitution, the Act and the Rules. On January 24, 2014 and subsequently
again on January 27, the Election Commission issued an administrative direction
that the "None of the Above†(Nota) provision would be made applicable for
elections to the Council of States (Rajya Sabha) also
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