SHAILESH MANUBHAI PARMAR versus ELECTION COMMISSION OF INDIA THROUGH THE CHIEF ELECTION COMMISSIONER & ORS. on 21 August 2018

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SUPREME COURT REPORTS [2018] 10 S.C.R. 76

[2018] 10 S.C.R.

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SHAILESH MANUBHAI PARMAR

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ELECTION COMMISSION OF INDIA THROUGHTHE CHIEF ELECTION COMMISSIONER & ORS.

(Writ Petition (Civil) No.631 of 2017)

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AUGUST 21, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Constitution of India:

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Art. 80(4) – Election for Council of States – Applicability ofthe option “None of the Above” (NOTA) – Election Commissionintroducing NOTA to Council of States elections – Challengedu/Art. 32 of the Constitution – Held: NOTA was introduced fordirect elections i.e. of Parliament and State Legislative AssembliesD– There is distinction between direct election and indirect election –Option of NOTA to Council of States election, which is indirectelection, would not only undermine the purity of democracy butalso serve the satan of defection and corruption.

Allowing the Writ Petition, the Court

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HELD: 1. Election Commission has treated thepronouncement in *PUCL’s case as its source of power. Thedecision in *PUCL relates to direct elections. The Court, in fact,has clearly observed that the directions pertain to the Parliamentand State Legislative Assemblies which is constituency basedFand grants an option to the voters to exercise the benefit of NOTA.In the said decision, emphasis has been laid on universal adultsuffrage conferred on the citizens of India by the Constitutionand the entitlement of a voter to come to the polling booth anddecide to vote for any candidate or to exercise the right not tovote. There has been distinction between direct and indirectGelections.[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.

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2. In election for Council of States, there is voting by openballot and it has been so introduced to sustain the foundationalvalues of party discipline and to avoid any kind of cross votingthereby ensuring purity in the election process. They have beentreated as core values of democracy and fair election. In a votingfor members of the Council of States, the nature of voting by anelector is a grave concern. It is because in such an election,there is a party whip and the elector is bound to obey the commandof the party. The party discipline in this kind of election is ofextreme significance, for that is the fulcrum of the existence ofpolitical parties. It is essential in a parliamentary democracy.The thought of cross voting and corruption is obnoxious in sucha voting. [Para 19] [93-E-G]

Ravi S. Naik v. Union of India and Others (1994) 2Suppl. 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 theConstitution, 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 andthe concept of disqualification to rule out defection, it is clearthat 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 categoricallyimperative. The democratic body polity stipulates that thequintessential idea of democracy is abhorrent to corruption andlaws emphasize on prevalence of genuine orderliness, positivepropriety, dedicated discipline and sanguine sanctity by constantaffirmance of constitutional morality which is the pillar stone ofgood governance. The purity of democracy does not withstandanything that has the potential to create an incurable chasm inthe backbone of a democratic setup. The law is meant to eradicatethe same. When one analyses the exercise of choice of NOTA inthe voting process of the Council of States where open ballot is A

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Apermissible and secrecy of voting has no room and further wherethe discipline of the political party/parties matters, it is clear thatsuch 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.

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5. An elector, though a single voter, has a quantified valueof his vote and the surplus votes are transferable. There isexistence of a formula for determining the value of the vote. Theconcept of vote being transferable has a different connotation. Acandidate after being elected becomes a representative of theCState and does not represent a particular constituency. Thecumulative effect of all these aspects clearly conveys that theintroduction of NOTA to the election process for electingmembers of the Council of States will be an anathema to thefundamental criterion of democracy which is a basic feature ofthe Constitution. [Para 23] [96-E-F]

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6. The introduction of NOTA in such an election will notonly run counter to the discipline that is expected from an electorunder the Tenth Schedule to the Constitution but also becounterproductive to the basic grammar of the law ofdisqualification of a member on the ground of defection. It is aEwell settled principle that what cannot be done directly, cannotbe done indirectly. If NOTA is allowed in the election of themembers to the Council of States, the prohibited aspect ofdefection would indirectly usher in with immense vigour.[Para 23] [96-G-H; 97-A-B]

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7. The purpose of introduction of NOTA in *PUCL’s caseis that a provision for negative voting can send a clear messageto the political parties and what a voter thinks about the candidatesin the fray. Thus, the said decision is directly relatable to a directelection, one man, one vote and one value. [Para 24] [97-B-C]

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8. The Election Commission has to act within the fourcorners of law made by the Parliament. That apart, if any directionis issued by this Court interpreting a provision for furtherance ofpurity of election, it will be obligatory on the part of theCommission to act in accordance with the same. The Commission H

SHAILESH MANUBHAI PARMAR v. ELECTIONCOMMISSION OF INDIA

cannot be allowed to conceive of certain concepts or ideas or, forthat matter, think of a different dimension which would not fitinto the legal framework. [Para 26] [99-A-B]

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9. The introduction of NOTA in indirect electionscompletely ignores the role of an elector in such an election andfully destroys the democratic value. The option of NOTA mayserve as an elixir in direct elections but in respect of the electionto the Council of States which is a different one, it would not onlyundermine the purity of democracy but also serve the Satan ofdefection and corruption. [Para 27] [99-E, F-G]

*People’s Union for Civil Liberties and Another v. Unionof 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] 1Suppl. SCR 791 ; Ram Jawaya Kapur v. State of Punjab[1955] 2 SCR 225 ; Bishambhar Dayal Chandra Mohanand Others v. State of Uttar Pradesh and Others(1982) 1 SCC 39 : [1982] 1 SCR 1137 – referred to.

Case Law Reference

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ACIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 631 of 2017.

K.K. Venugopal, AG, Tushar Mehta, ASG, Dr. Abhishek ManuSingvhi, Sr. Adv., Devadatt Kamat, Javedur Rahman, Mohd. NizamPasha, Amit Bhandari, Aditya Bhat, Rajesh Inamdar, Farrukh Rasheed,BAmit Sharma, Dipesh Sinha, Ms. Ayiala Imti, Merusagar Samantray,Ms. Madhavi Divan, Ms. Lhingneivah, Arvind Kumar Sharma, Advs.for the appearing parties.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI 1. In the instant writ petition preferredCunder Article 32 of the Constitution of India, the petitioner who is theChief Whip of the Indian National Congress party in Gujarat LegislativeAssembly challenges the circular dated 1[st] August, 2017 issued by theSecretary, Gujarat Legislature Secretariat, the Respondent No.3 herein,in relation to the conduct of elections for the Council of States. ThoughDthe circular covers various aspects, he has challenged the availability ofthe option “None of the Above” (NOTA).

2. It is asserted that the Election Commission of India had issueddirections to the Chief Electoral Officers of all the States and the UnionTerritories (except Andaman & Nicobar Islands, Chandigarh, Dadra &ENagar Haveli, Daman & Diu and Lakshadweep) directing that the optionof NOTA could be applicable for elections in the Rajya Sabha and thesaid option shall be printed on the ballot paper in the language or languagesin which the ballot paper is printed as per the directions issued by theElection Commission in pursuance of sub-rule (1) of Rule 22 and sub-rule (1) of Rule 30 read with Rule 70 of the Conduct of Election Rules,F1961 (for short, ‘the Rules’). Reference has been made to thecommunication dated 12[th] November, 2015 by the 1[st] respondent to theChief Electoral Officers of all the States giving further directionsregarding the manner of voting in preferential system but we are onlyconcerned with the applicability of NOTA to the Rajya Sabha elections.GIt is contended in the petition that the circulars issued by the ElectionCommission of India introducing NOTA to the elections in respect ofmembers of the Rajya Sabha are contrary to the mandate of Article80(4) of the Constitution of India and the decision of this Court in People’s Union for Civil Liberties and another v. Union of India and another(PUCL)[1]. It does not lend any support to the understanding of the ElectionCommission for introducing such an option in respect of Rajya Sabhaelections. It is averred that Section 59 of the Representation of thePeople Act, 1951 (for brevity, ‘the 1951 Act’) provides for the mannerof voting at elections and Section 169 empowers the Central Government,after consulting the Election Commission, to make rules for carrying outthe purposes of this Act. Reference has been made to Part VI of theRules which makes special provisions for voting at elections by Assemblymembers and Rule 70 provides that Rules 37(8) to 40A shall apply. Relyingon the interpretation of the said Rules, it is urged that the scheme of theRules referred to above and Rules 71 to 76 do not remotely conceive ofNOTA but the same has been brought in by issuance of circular by theElection Commission and, hence, the same is unconstitutional.

3. A counter affidavit has been filed by the 1[st] respondentcontending, inter alia, that the constitutional courts do not interdict inthe election process and challenge can only be made after the election isover by filing an election petition before the appropriate court; that asper the pronouncement in PUCL’s case, there is no distinction betweendirect and indirect elections and, hence, the provision of NOTA in theballot paper of the elections has been made applicable by the ElectionCommission to Rajya Sabha to effectuate the right of electors guaranteedto them under Section 79A of the Act; that though there is no need forsecrecy in Rajya Sahba elections because the law makes it open voting,yet that does not take away the right of the elector not to vote byexpressing the option of NOTA; that even assuming the position that thejudgment in PUCL’s case does not indicate that this Court ever intendedto apply the option of NOTA to Rajya Sabha elections, yet the ElectionCommission has issued letter dated 24[th] January, 2014 and furtherreiterated by letter dated 12[th] November, 2015 that the option of NOTAwould be applicable to elections in Rajya Sabha; and that elections hadalready been held by applying the said option and, therefore, there is nojustification to challenge the said directions at a belated stage. Be itnoted, the first two points were advanced as preliminary objections andall the other grounds raised pertained to the validity of the circular issuedby the 1[st] respondent.

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A4. We may immediately note that the issue of introduction of anelection process does not arise in the present case. As regards the issueof maintainability of the writ petition, no argument was advanced in thatregard and, we have no hesitation to say, correctly so.

5. To understand and appreciate the controversy, it is imperativeBto scrutinize what has been envisaged under Article 80(4) of theConstitution. Article 80 deals with the composition of the Council ofStates. Article 80(4) reads as follows:- “(4) The representatives of each State in the Council of Statesshall be elected by the elected members of the LegislativeCAssembly of the State in accordance with the system ofproportional representation by means of the single transferablevote.”

6. In Ananga Uday Singh Deo v. Ranga Nath Mishra andothers[2], a three-Judge Bench has dealt with the nature of election to theDCouncil of States. It is useful to reproduce a few passages from thesame:- “41. The system of proportional representation by singletransferable vote comes into operation only if there is more thanone candidate to be elected. The election is held by multi-memberEconstituencies. All the candidates who compete for the seatsallotted to a constituency have their names printed on one ballotpaper. Each elector has only one vote in the sense that it will becapable of electing one candidate only. But that vote will not bewasted in case the candidate whom he wishes to elect has gotmore than the required number of votes, called the “quota”. TheFelector is required to indicate his multiple preferences by placingthe figures 1, 2 and 3 in order of preferences. The surplus votes inthe hands of the candidates declared elected are transferred tothe then candidates.”

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43. Rule 74 provides that the Returning Officer after rejecting theballot papers which are invalid arrange the remaining ballot papersin parcels according to the first preference recorded for eachcandidate; count and record the number of papers in each parcel

and the total number; and credit to each candidate the value ofthe papers in his parcel. Rule 76 provides for ascertainment ofquota. It provides that at any election where more than one seatis to be filled, every valid ballot paper shall be deemed to be of thevalue of 100, and the quota sufficient to secure the return of acandidate at the election shall be determined by adding the valuecredited to all the candidates and then dividing the total by a numberwhich exceeds by one the number of vacancies to be filled andthen to add one to the quotient ignoring the remainder, if any, andthe resulting number is the quota. In simple words it would workas under:

Total Number of ballot papers +1 = Quota Number of members to be elected + 1

44. Rule 78 provides that if at the end of any count or at the endof the transfer of any parcel or sub-parcel of an excluded candidatethe value of ballot papers credited to a candidate is equal to, orgreater than the quota, that candidate shall be declared elected.”

7. Presently, we may refer to Rules 79, 80 and 81 of the Ruleswhich read as follows:- “79. Transfer of surplus.—(1) If at the end of any count thevalue of the ballot papers credited to a candidate is greater thanthe quota, the surplus shall be transferred, in accordance with theprovisions of this Rule, to the continuing candidates indicated onthe ballot papers of that candidate as being next in order of theelector’s preference.

(2) If more than one candidate have a surplus, the largest surplusshall be dealt with first and the others in order of magnitude:

Provided that every surplus arising on the first count shall be dealtwith before those arising on the second count and so on.

(3) Where there are more surpluses than one to distribute andtwo or more surpluses are equal, regard shall be had to the originalvotes of each candidate and the candidate for whom most originalvotes are recorded shall have his surplus first distributed; and ifthe values of their original votes are equal, the returning officershall decide by lot which candidate shall have his surplus firstdistributed.

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(4) (a) If the surplus of any candidate to be transferred arisesfrom original votes only, the returning officer shall examine all thepapers in the parcel belonging to that candidate, divide theunexhausted papers into sub-parcels according to the nextpreferences recorded thereon and make a separate sub-parcel ofthe exhausted papers.

(b) He shall ascertain the value of the papers in each sub-parceland of all the unexhausted papers.

(c) If the value of the unexhausted papers is equal to or less thanthe surplus, he shall transfer all the unexhausted papers at thevalue at which they were received by the candidate whose surplusis being transferred.

(d) If the value of the unexhausted papers is greater than thesurplus, he shall transfer the sub-parcels of unexhausted papersand the value at which each paper shall be transferred shall beascertained by dividing the surplus by the total number ofunexhausted papers.

(5) If the surplus of any candidate to be transferred arises fromtransferred as well as original votes, the returning officer shall re-examine all the papers in the sub-parcel last transferred to thecandidate, divide the unexhausted papers into sub-parcelsaccording to the next preferences recorded thereon, and then dealwith the sub-parcels in the same manner as is provided in thecase of sub-parcels referred to in sub-rule (4).

(6) The papers transferred to each candidate shall be added inthe form of a sub-parcel to the papers already belonging to suchcandidate.

(7) All papers in the parcel or sub-parcel of an elected candidatenot transferred under this Rule shall be set apart as finally dealtwith.

80. Exclusion of candidates lowest on the poll.—(1) If after allsurpluses have been transferred as hereinbefore provided, thenumber of candidates elected is less than the required number,the returning officer shall exclude from the poll the candidate loweston the poll and shall distribute his unexhausted papers among the continuing candidates according to the next preferences recordedthereon; and any exhausted papers shall be set apart as finallydealt with.

(2) The papers containing original votes of an excluded candidateshall first be transferred, the transfer value of each paper beingone hundred.

(3) The papers containing transferred votes of an excludedcandidate shall then be transferred in the order of the transfers inwhich, and at the value at which, he obtained them.

(4) Each of such transfers shall be deemed to be a separate transferbut not a separate count.

(5) If, as a result of the transfer of papers, the value of votesobtained by a candidate is equal to or greater than the quota, thecount then proceeding shall be completed but no further papersshall be transferred to him.

(6) The process directed by this Rule shall be repeated on thesuccessive exclusions one after another of the candidates loweston the poll until such vacancy is filled either by the election of acandidate with the quota or as hereinafter provided.

(7) If at any time it becomes necessary to exclude a candidateand two or more candidates have the same value of votes and arethe lowest on the poll, regard shall be had to the original votes ofeach candidate and the candidate for whom fewest original votesare recorded shall be excluded; and if the values of their originalvotes are equal the candidates with the smallest value at the earliestcount at which these candidates had unequal values shall beexcluded.

(8) If two or more candidates are lowest on the poll and each hasthe same value of votes at all counts the returning officer shalldecide by lot which candidate shall be excluded.

81. Filling the last vacancies.—(1) When at the end of anycount the number of continuing candidates is reduced to the numberof vacancies remaining unfilled, the continuing candidates shallbe declared elected.

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(2) When at the end of any count only one vacancy remains unfilledand the value of the papers of some one candidate exceeds thetotal value of the papers of all the other continuing candidatestogether with any surplus not transferred, that candidate shall bedeclared elected.

(3) When at the end of any count only one vacancy remains unfilledand there are only two continuing candidates and each of themhas the same value of votes and no surplus remains capable oftransfer, the returning officer shall decide by lot which of themshall be excluded; and after excluding him in the manner aforesaid,declare the other candidate to be elected.”

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8. In Ananga Uday Singh Deo (supra), interpreting the saidRules, the Court held :- “46. Rule 79 comes into operation in case a candidate or morethan one candidate has received more votes than the requiredDquota. If at the end of any count the value of the ballot paperscredited to a candidate is greater than the quota, the surplus shallbe transferred in accordance with the provisions of this Rule, tothe continuing candidates indicated on the ballot papers of thatcandidate as being next in order of the elector’s preference. Afterworking out the surplus votes in order of preference in favour ofEthe remaining candidates, the surplus votes are transferred to theremaining candidates and added to the value of votes polled bythat candidate. In this exercise if any candidate reaches therequisite quota, then he is declared elected.

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47. If no candidate wins on transfer of the surplus votes obtainedFby him from the surplus of votes from the candidate who is alreadydeclared elected, then the provision of exclusion of candidateslowest on polled votes as provided under Rule 80 comes intooperation. The Returning Officer then excludes from the poll thecandidate lowest on the poll and distributes his unexhausted ballotGpapers among the continuing candidates according to the nextpreference recorded thereon. The process is continued till thetotal number of vacancies is filled up.”

From the aforesaid analysis by the Court, it is discernible that thevote of an elector has certain value and that there is transfer of surplusvotes.

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9. In PUCL’s case, the constitutional validity of Rules 41(2), 41(3)and 49-O of the Rules was challenged to the extent that the said Rulesviolate the secrecy of voting which is fundamental to the concept of freeand fair election and is required to be maintained as per Section 128 ofthe 1951 Act and Rules 39 and 49-N of the Rules. The Court referredto the decision in Lily Thomas v. Speaker, Lok Sabha and others[3]wherein it has been stated that voting is a formal expression of will oropinion by the person entitled to exercise the right on the subject or issuein question and that right to vote means the right to exercise the right infavour of or against the motion or resolution and such a right impliesright to remain neutral as well. Thereafter, the Court referred to Section79 of the 1951 Act and Rules 41(2), 41(3) and 49-O of the Rules andopined that the Rules make it clear that a right not to vote has beenrecognized both under the 1951 Act and the Rules. It further expressed:- “….A positive “right not to vote” is a part of expression of a voterin a parliamentary democracy and it has to be recognised andgiven effect to in the same manner as “right to vote”. A votermay refrain from voting at an election for several reasons includingthe reason that he does not consider any of the candidates in thefield worthy of his vote. One of the ways of such expression maybe to abstain from voting, which is not an ideal option for aconscientious and responsible citizen. Thus, the only way by whichit can be made effectual is by providing a button in the EVMs toexpress that right. This is the basic requirement if the lasting valuesin a healthy democracy have to be sustained, which the ElectionCommission has not only recognised but has also asserted.”

10. The Court considered the stand of the Election Commissionthat in the larger interest of promoting democracy, a provision for NOTAshould be made in the EVMs/ballot papers, for such an option, apartfrom promoting free and fair elections in a democracy, will provide anopportunity to the elector to express his dissent or disapproval againstthe contesting candidates and will have the benefit of reducing bogusvoting. Eventually, the Court held that Rules 41(2) and 41(3) and Rule49-O of the Rules are ultra vires Section 128 of the 1951 Act and Article19 of the Constitution to the extent they violate secrecy of voting.However, the Court held:- 3 (1993) 4 SCC 234

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A“57. Giving right to a voter not to vote for any candidate whileprotecting his right of secrecy is extremely important in ademocracy. Such an option gives the voter the right to express hisdisapproval with the kind of candidates that are being put up bythe political parties. When the political parties will realise that alarge number of people are expressing their disapproval with theBcandidates being put up by them, gradually there will be a systemicchange and the political parties will be forced to accept the will ofthe people and field candidates who are known for their integrity.

58. The direction can also be supported by the fact that in theexisting system a dissatisfied voter ordinarily does not turn up forCvoting which in turn provides a chance to unscrupulous elementsto impersonate the dissatisfied voter and cast a vote, be it anegative one. Furthermore, a provision of negative voting wouldbe in the interest of promoting democracy as it would send clearsignals to political parties and their candidates as to what theDelectorate thinks about them.”

[Emphasis added]

11. On the basis of the aforesaid analysis, the Court directed theElection Commission to make necessary provision in the ballot papers/EVMs for another button called “None of the above (NOTA)” so thatEthe voters, who come to the polling booth and decide not to vote for anyof the candidates in the fray, are able to exercise their right not to votewhile maintaining their right of secrecy.

12. In this context, understanding of the principle laid down inKuldip Nayar and others v. Union of India and others[4] in that regardFis quite instructive. Interpreting the words ‘representatives of the States”used in Articles 80(1)(b), 80(1)(2), 80(4), the Constitution Bench ruled:- “204. Upon being given their plain meaning, the words“representatives of the States” in Article 80(1)(b), Article 80(2)and Article 80(4) must be interpreted to connote persons who areGelected to represent the State in the Council of States. It is theelection that makes the person elected the “representative”. Inorder to be eligible to be elected to the Council of States, a personneed not be a representative of the State beforehand. It is onlywhen he is elected to represent the State that he becomes a representative of the State. Those who are elected to representthe State by the electoral college, which for present purposesmeans the elected Members of the Legislative Assembly of theState, are necessarily the “representatives” of the State.”

The aforesaid passage shows the nature of representation in theCouncil of States. It is clear as crystal that the nature of the representativeis different, for he becomes a representative of the State. This is incontradistinction to an elected candidate who is elected by the voters ina direct election because he represents a constituency.

13. We may further note with profit that in the said case, theCourt had adverted to secrecy of voting for the election of the Councilof States. The Court noted that in the wake of “emerging trend ofcross-voting in the Rajya Sabha and Legislative Council elections”,elections “by open ballot” were incorporated. The Court further notedthat the cumulative effect of the amendments to Sections 59, 94 and 128of the Act brought about by Act 40 of 2003 is that election for filling upof seats in the Council of States is to be held by open ballot and therequirements of maintenance of secrecy of voting is now made subjectto an exception mentioned in the proviso. The Court adverted to theconcept of free and fair elections and noted the contention that thedisclosure of choice or any fear or compulsion or even a political pressureunder a whip goes against the concept of free and fair elections and thatimmunity from such fear or compulsion can be ensured only if the electionis held on the principle of secret ballot.

14. Adverting to various decisions, the larger Bench opined thatthe procedure by which an election has to be held should further theobject of free and fair election and as the Parliament noted that in electionto the Council of States, members elected on behalf of political partiesmisuse the secret ballot and cross-vote and there had been breach ofdiscipline by political parties for collateral and corrupt considerations, itlegislated to provide for an open ballot. The Court further observed thatthe principle of secrecy is not an absolute principle though the said principleis meant to ensure free and fair elections. However, the higher principleis free and fair election and purity of election. The larger Bench furtherproceeded to state:-

“464. The secrecy of ballot is a vital principle for ensuring freeand fair elections. The higher principle, however, is free and fair A

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Aelections and purity of elections. If secrecy becomes a source forcorruption then sunlight and transparency have the capacity toremove it. We can only say that legislation pursuant to a legislativepolicy that transparency will eliminate the evil that has crept inwould hopefully serve the larger object of free and fair elections.”

B15. We may presently refer to the notification issued by the ElectionCommission on 24.01.2014. After referring to the PUCL’s judgment andthe doubt expressed with regard to the applicability of the option of NOTAduring elections of Rajya Sabha, the Commission has instructed thus:- “The Commission has dully considered the matter and it has beenCdecided that the NOTA option will also be applicable for electionsto Rajya Sabha. Accordingly, the Commission hereby directs thatafter the name and particulars of the last candidate on the ballotpaper another panel may be provided and the words “None of theabove (NOTA)” shall be printed therein in the language orlanguages in which the ballot paper is printed as per directionDissued by the Commission in pursuance of Sub-Rule (1) of Rule22 and Sub-Rule (1) of Rule 30, read with Rule 70 of the Conductof Election Rules, 1961.

2. Please bring the above instructions to the notice of the ReturningOfficers for Conduct of Elections to the Council of States forEcompliance during the current biennial elections to Rajya Sabhaalready announced to fill up the vacancies to be caused in themonth of April 2014 and all future elections to Rajya Sabha.

3. Necessary instruction with regard to marking of ballot paperfor exercising the option of “None of the Above” and the countingFof votes in view of the above option will be issued shortly.”16. A further circular has been issued on 12.11.2015 which laysdown thus:- “2. It has been brought to the notice of the Commission that therehave been some cases where electors, having marked IstGpreference against one of the candidates put cross mark ormentioned subsequent preference (2[nd], 3[rd], etc.) against NOTA,which have led to rejection of the ballot paper. In the light of suchcases, the Commission has considered the matter afresh and, witha view to ensuring the compliance of rule 73(2) of the CE RulesH1961 and adoption of a uniform approach towards the requirement of providing for NOTA option and the manner ofvoting in preferential system using single transferable vote, theCommission has given the following directions for exercising ofNOTA option in elections to Rajya Sabha and State LegislativeCouncils:-

(i) Marking against NOTA shall be by way of writing figures 1, 2,3, etc. as in the case of marking preference for candidates, i.e ininternational form of Indian numerals or in the Roman form or inany Indian language;

(ii) If preference ‘1’ is marked against NOTA, it shall be treatedas a case of not voting for any of the candidates and such ballotshall be treated as invalid, even if ‘1’ is also marked against anyother candidate in addition to being marked against NOTA;

(iii) If 1[st] preference is validly marked against one of thecandidates, and 2[nd] preference is marked against NOTA, suchballot paper shall be treated as valid for the candidate for whom1[st] preference has been marked, provided there is no other groundto invalidate it, under rule 73(2). In such case, at the stage ofexamining 2[nd] preference, the ballot paper shall be treated asexhausted as the 2[nd] preference is marked against NOTA.Similarly, if 1[st] and 2[nd] preferences are validly marked against acandidate each and 3[rd] preference is marked against NOTA, theballot shall be valid for the first count and for the purposes of the2[nd] preference, but, at the stage of examining the 3[rd] preference,if such stage comes, the ballot shall be treated as exhausted. Theseinstructions shall apply for subsequent preferences also.

(iv) If 1[st] preference and subsequent preferences, if any, arevalidly marked against the candidates and cross/tick is markedagainst NOTA, the ballot paper shall not be rejected as invalidonly on this ground, and the preferences marked against thecandidates shall be considered and counted accordingly.However, the general provisions of the rules and the Commission’sinstructions regarding marks that may identify the voter shallapply in the case of the mark against NOTA option, and if the ROconsiders that the mark put therein reasonably points towardsidentification of the voter within the meaning of rule 73(2)(d), thatwould render the ballot liable to rejection on that ground.”

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A 17. In the instructions to the voters for casting vote in RajyaSabha, it has been stated that:- “5. Out of the candidates shown in the Ballot Paper, if you do notwant to elect any candidate, then in the column “Show your Orderof Preference”, against “NOTA” figure of “1” is required to beBshown. In the column against “NOTA”, instead of figure “1”,alternative preference numbers 2, 3, 4 etc. can also be shown.

6. This figure of “1” can be put against the name of only onecandidate or against “NOTA”.”

18. The criticism advanced is that the circulars are not inCaccordance with the procedure envisaged under the 1951 Act and theRules. Placing reliance on Ram Jawaya Kapur v. State of Punjab[5]and Bishambhar Dayal Chandra Mohan and others v. State of UttarPradesh and others[6], it is urged that it is beyond the power of theElection Commission, the first respondent herein, to introduce NOTA toDthe elections of the members to the Council of States. As we notice, theElection Commission has treated the pronouncement in PUCL’s case asits source of power. The decision in PUCL relates to direct elections.The Court, in fact, has clearly observed that the directions pertain to theParliament and State Legislative Assemblies which is constituency basedand grants an option to the voters to exercise the benefit of NOTA. InEthe said decision, emphasis has been laid on universal adult suffrageconferred on the citizens of India by the Constitution and the entitlementof a voter to come to the polling booth and decide to vote for any candidateor to exercise the right not to vote. There has been distinction betweendirect and indirect elections. In Kuldip Nayar (supra), the ConstitutionFBench has drawn the distinction by expressing thus:- “441. Voting at elections to the Council of States cannot becompared with a general election. In a general election, the electorshave to vote in a secret manner without fear that their votes wouldbe disclosed to anyone or would result in victimisation. There isGno party affiliation and hence the choice is entirely with the voter.This is not the case when elections are held to the Council ofStates as the electors are elected Members of the LegislativeAssemblies who in turn have party affiliations.”

5 (1955) 2 SCR 225H6 (1982) 1 SCC 39

And again:-

“454. The distinguishing feature between “constituency-basedrepresentation” and “proportional representation” in arepresentative democracy is that in the case of the list system ofproportional representation, members are elected on party lines.They are subject to party discipline. They are liable to beexpelled for breach of discipline. Therefore, to give effect tothe concept of proportional representation, Parliament can suggest“open ballot”. In such a case, it cannot be said that “free andfair elections” would stand defeated by “open ballot”. Asstated above, in a constituency-based election it is the peoplewho vote whereas in proportional representation it is theelector who votes. This distinction is indicated also in the Australianjudgment in R. v. Jones[7].In constituency-based representation,“secrecy” is the basis whereas in the case of proportionalrepresentation in a representative democracy the basis can be“open ballot” and it would not violate the concept of “free and fairelections”, which concept is one of the pillars of democracy.”

19. The aforesaid passages throw immense light on the distinctionbetween direct and indirect elections and especially on the concept ofindirect election which encompasses proportional representation. Thereis voting by open ballot and it has been so introduced to sustain thefoundational values of party discipline and to avoid any kind of crossvoting thereby ensuring purity in the election process. They have beentreated as core values of democracy and fair election. It is worth to notethat in a voting for members of the Council of States, the nature ofvoting 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 ofthe party. The party discipline in this kind of election is of extremesignificance, for that is the fulcrum of the existence of political parties.It is essential in a parliamentary democracy. The thought of cross votingand corruption is obnoxious in such a voting. In this context, we mayrefer with profit to the authority in Ravi S. Naik v. Union of India andothers[8]. In the said case, the question arose relating to the disqualificationof a Member of the State Legislature under Article 191(2) read with theTenth Schedule to the Constitution. The two-Judge Bench referred to 7 (1972) 128 CLR 221

8 1994 Supp (2) SCC 641

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Athe decision in Kihoto Hollohan v. Zachillhu and others[9] and addressedthe issue of defection covered under paragraphs 2(1)(a) and 2(1)(b) ofthe Tenth Schedule. Referring to the said paragraphs, the Court ruled:- “….The said paragraph provides for disqualification of a memberof a House belonging to a political party “if he has voluntarilyBgiven up his membership of such political party”. The words“voluntarily given up his membership” are not synonymous with“resignation” and have a wider connotation. A person mayvoluntarily give up his membership of a political party even thoughhe has not tendered his resignation from the membership of thatparty. Even in the absence of a formal resignation from membershipCan inference can be drawn from the conduct of a member that hehas voluntarily given up his membership of the political party towhich he belongs.”

20. Paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule to theConstitution read as under:-D

“1) Subject to the provisions of paragraphs 4 and 5, a member ofa House belonging to any political party shall be disqualified forbeing a member of the House—

(a) if he has voluntarily given up his membership of such politicalEparty; or (b) if he votes or abstains from voting in such House contrary toany direction issued by the political party to which he belongs orby any person or authority authorized by it in this behalf, withoutobtaining, in either case, the prior permission of such political party,person or authority and such voting or abstention has not beenFcondoned by such political party, person or authority within fifteendays from the date of such voting or abstention.

Explanation – For the purposes of this sub-paragraph,- (a) an elected member of a House shall be deemed to belong toGthe political party, if any, by which he was set up as a candidatefor election as such member; (b) a nominated member of a House shall,- 9 1992 Supp (2) SCC 651H

(i) where he is a member of any political party on the date of hisnomination as such member, be deemed to belong to such politicalparty;

(ii) in any other case, be deemed to belong to the political party ofwhich he becomes, or, as the case may be, first becomes, amember before the expiry of six months from the date on whichhe takes his seat after complying with the requirements of article99 or, as the case may be, article 188.”

21. The appellants therein were disqualified by the Speaker of theHouse under the Goa Legislative Assembly (Disqualification on Groundsof Defection) Rules, 1986. Dealing with the aspect of disqualification,the Court ruled:-

“A candidate voluntarily gives up his membership and inferencecan be drawn from his conduct that he has voluntarily given upthe membership of the political party.”

A distinction has been drawn between resignation and voluntarilygiving up.

22. It is demonstrable that an elector can be disqualified if hevoluntarily gives up his membership of the political party. It is submittedby Dr. Abhishek Manu Singhvi that an elector belonging to a particularparty may not voluntarily give up the membership but can exercise hischoice of NOTA despite his political party setting up a candidate.According to the learned senior counsel, this creates an anomaloussituation and brings in horse trading, corruption and use of extraconstitutional methods which were sought to be avoided by the introductionof the Tenth Schedule in the Constitution by the Constitution (Fifty-SecondAmendment) Act, 1985. It is necessary to mention here that the saidamendment was introduced to eradicate the evil of political defection.The Statement of Objects and Reasons to the said amendment providesthus:- “The evil of political defections has been a matter of nationalconcern. If it is not combated, it is likely to undermine the veryfoundations of our democracy and the principles which sustain it.With this object, an assurance was given in the Address by thePresident to Parliament that the Government intended to introduce AB

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Ain the current session of Parliament an anti-defection Bill. ThisBill is meant for outlawing defection and fulfilling the aboveassurance.”

On a keen scrutiny of the Statement of Objects and Reasons andthe concept of disqualification to rule out defection, it is clear that theBsame is indirectly defeated by the introduction of NOTA.

23. In a democracy, the purity of election is categorically imperative.The democratic body polity, as has been held in Manoj Narula v. Unionof India[10], stipulates that the quintessential idea of democracy isabhorrent to corruption and laws emphasize on prevalence of genuineCorderliness, positive propriety, dedicated discipline and sanguine sanctityby constant affirmance of constitutional morality which is the pillar stoneof good governance. The purity of democracy does not withstand anythingthat has the potential to create an incurable chasm in the backbone of ademocratic setup. The law is meant to eradicate the same. When oneanalyses the exercise of choice of NOTA in the voting process of theDCouncil of States where open ballot is permissible and secrecy of votinghas no room and further where the discipline of the political party/partiesmatters, it is clear that such choice will have a negative impact. Anelector, though a single voter, has a quantified value of his vote and thesurplus votes are transferable. There is existence of a formula forEdetermining the value of the vote. The concept of vote being transferablehas a different connotation. It further needs to be stated that a candidateafter being elected becomes a representative of the State and does notrepresent a particular constituency. The cumulative effect of all theseaspects clearly conveys that the introduction of NOTA to the electionprocess for electing members of the Council of States will be an anathemaFto the fundamental criterion of democracy which is a basic feature ofthe Constitution. It can be stated without any fear of contradiction thatthe provisions for introduction of NOTA as conceived by the ElectionCommission, the first respondent herein, on the basis of the PUCLjudgment is absolutely erroneous, for the said judgment does not say so.GWe are disposed to think that the decision could not have also said sohaving regard to the constitutional provisions contained in Article 80 andthe stipulations provided under the Tenth Schedule to the Constitution.The introduction of NOTA in such an election will not only run counterto the discipline that is expected from an elector under the Tenth Schedule10 (2014) 9 SCC 1H

to the Constitution but also be counterproductive to the basic grammarof the law of disqualification of a member on the ground of defection. Itis a well settled principle that what cannot be done directly, cannot bedone indirectly. To elaborate, if NOTA is allowed in the election of themembers to the Council of States, the prohibited aspect of defectionwould indirectly usher in with immense vigour.

24. We may further add with profit that the purpose of introductionof NOTA in PUCL’s case is that a provision for negative voting cansend a clear message to the political parties and what a voter thinksabout the candidates in the fray. Thus, the said decision is directly relatableto a direct election, one man, one vote and one value.

25. In this context, we may usefully refer to Article 324 of theConstitution. It reads thus:- “324. Superintendence, direction and control of elections to bevested in an Election Commission

(1) The superintendence, direction and control of the preparationof the electoral rolls for, and the conduct of, all elections toParliament and to the Legislature of every State and of electionsto the offices of President and Vice President held under thisConstitution shall be vested in a Commission (referred to in thisConstitution as the Election Commission)

(2) The Election Commission shall consist of the Chief ElectionCommissioner and such number of other Election Commissioners,if any, as the President may from time to time fix and theappointment of the Chief Election Commissioner and other ElectionCommissioners shall, subject to the provisions of any law made inthat behalf by Parliament, be made by the President

(3) When any other Election Commissioner is so appointed theChief Election Commissioner shall act as the Chairman of theElection Commission

(4) Before each general election to the House of the People andto the Legislative Assembly of each State, and before the firstgeneral election and thereafter before each biennial election tothe Legislative Council of each State having such Council, thePresident may also appoint after consultation with the ElectionCommission such Regional Commissioners as he may consider A

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necessary to assist the Election Commission in the performanceof the functions conferred on the Commission by clause (1)

(5) Subject to the provisions of any law made by Parliament, theconditions of service and tenure of office of the ElectionCommissioners and the Regional Commissioners shall be such asthe President may by rule determine; Provided that the ChiefElection Commissioner shall not be removed from his office exceptin like manner and on the like grounds as a Judge of the SupremeCourt and the conditions of service of the Chief ElectionCommissioner shall not be varied to his disadvantage after hisappointment: Provided further that any other ElectionCommissioner or a Regional Commissioner shall not be removedfrom office except on the recommendation of the Chief ElectionCommissioner

(6) The President, or the Governor of a State, shall, when sorequested by the Election Commission, make available to theElection Commission or to a Regional Commissioner such staffas may be necessary for the discharge of the functions conferredon the Election Commission by clause ( 1 )”

26. Interpreting the said Article, the Constitution Bench in KuldipNayar (supra) held:- “427. In this context, we would say that where the law on thesubject is silent, Article 324 is a reservoir of power for the ElectionCommission to act for the avowed purpose of pursuing the goalof a free and fair election, and in this view it also assumes the roleof an adviser. But the power to make law under Article 327 vestsin Parliament, which is supreme and so, not bound by such advice.We would reject the argument by referring to what this Court hasalready said in Mohinder Singh Gill (1978) 1 SCC 405 and whatbears reiteration here is that the limitations on the exercise of“plenary character” of the Election Commission include one tothe effect that “when Parliament or any State Legislature hasmade valid law relating to or in connection with elections, theCommission, shall act in conformity with, not in violation of, suchprovisions”

From the aforesaid passage, it is quite clear that the ElectionCommission has to act within the four corners of law made by theParliament. That apart, if any direction is issued by this Court interpretinga provision for furtherance of purity of election, it will be obligatory onthe part of the Commission to act in accordance with the same. TheCommission cannot be allowed to conceive of certain concepts or ideasor, for that matter, think of a different dimension which would not fit intothe legal framework.

27. It can be said without a speck of doubt that the decision takenby the Election Commission as regards the introduction of NOTA in theelection of the members to the Council of States also runs counter towhat has been stated hereinabove. NOTA will destroy the concept ofvalue of a vote and representation and encourage defection that shallopen the doors for corruption which is a malignant disorder. It has to beremembered that democracy garners its strength from the citizenry trustwhich is sustained only on the foundational pillars of purity, integrity,probity and rectitude and such stronghold can be maintained only byensuring that the process of elections remains unsullied and unpollutedso that the citadel of democracy stands tall as an impregnable bulwarkagainst unscrupulous forces. The introduction of NOTA in indirectelections 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 insuch an election and fully destroys the democratic value. It may bestated with profit that the idea may look attractive but its practicalapplication defeats the fairness ingrained in an indirect election. Moreso where the elector’s vote has value and the value of the vote istransferrable. It is an abstraction which does not withstand the scrutinyof, to borrow an expression from Krishna Iyer, J., the “cosmos ofconcreteness”. We may immediately add that the option of NOTA mayserve as an elixir in direct elections but in respect of the election to theCouncil of States which is a different one as discussed above, it wouldnot only undermine the purity of democracy but also serve the Satan ofdefection and corruption.

28. In view of the aforesaid analysis, the writ petition is allowedand the circulars issued by the Election Commission, the first respondentherein, introducing NOTA in respect of elections to the Council of Statesare hereby quashed. There shall be no order as to costs.

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Writ Petition allowed.H