Shailesh Manubhai Parmar vs. Election Commission of India

IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 631 of 2017
Petitioner
Shailesh Manubhai Parmar 
Respondent
Election Commission of India
Date of Judgement
21st August, 2018
Bench
Dipak Misra, C.J.I.; M. Khanwilkar; D.Y. Chandrachud, JJ.

Introduction:

“None of the Above” (or NOTA) has been provided as an option for Indian voters in most elections since 2019. By expressing a preference for any of the above, a citizen may choose not to vote for candidates contesting the election. The vote has no electoral value; even if a majority of votes were cast for NOTA, the candidate with the most votes would still be the winner.[i]

NOTA was first used in India in 2009.  Chhattisgarh was the first state in India to give voters the option of NOTA in local government elections. Since its introduction, NOTA has gained increasing popularity among the Indian electorate, securing more votes than the margin of victory, for example, in the 2017 Elections of the Assembly in Gujarat,  Karnataka (2018), Madhya Pradesh (2018)  and Rajasthan (2018). NOTA allows the voter to show their unacceptance for the candidates.[ii]

In the light of the aforesaid background, it becomes pertinent to analyze the landmark case of the Supreme Court in the case of Shailesh Manubhai Parmar v. Election Commission of India[iii].

Background: 

Judicial Background:

In India, in 2009, the Electoral Commission of India requested the Supreme Court to offer the voter a “None of the Above” option in the vote as it would give voters the freedom of not selecting any candidate that does not deserve it.[iv]  

“The PUCL”, which is an NGO, presented a declaration of public interest litigation to favour NOTA. Finally, on September 27, 2013, the Supreme Court of India applied the right to register a vote of ‘None of the Above’ in the elections, which then ordered the Electoral Commission that all voting machines should have a button NOTA to give voters the option to choose ‘none of the above’.[v]

International Background:

The idea of ​​a “none of the previous elections” option originated in 1976 when the Municipal Advisory Council of Isla Vista passed a resolution to present this election in the official electoral vote, in Santa Barbara County, California, in the United States.

Walter Wilson and Matthew Landy Steen, then Council Ministers, presented a legal resolution to make some changes to the voting procedure for the elections. The option “None of the Above” (NOTA) was first introduced, in 1978, in a vote by the State of Nevada. In California, a total of $ 987,000 was spent on the promotion of this voting option but was defeated by a margin of 64% to 36% in the general elections of March 2000. This new voting option would have been declared as a new voting system for all elective offices of the US state and federal governments if the voters had approved it.

Constitutional and Statutory Provisions discussed:

• Article 32, 80(4), 82, 158 and 171 of the Constitution of India.
• Sections 59, 94 and 128 of the Representation of People Act, 1951.

Facts:

The present writ petition was preferred under Article 32 of the Constitution of India. In the aforesaid petition, the petitioner who is the Chief Whip of the Indian National Congress party in Gujarat Legislative Assembly challenges the circular dated 1st August, 2017 issued by the Secretary, Gujarat Legislature Secretariat, the Respondent No.3 herein. The challenge is made in relation to the conduct of elections for the Council of States. Though the circular covers various aspects, he has challenged the availability of the option ―None of the above.

Issue:

• Whether the circular issued by the Electoral Commission, by which the Commission had issued instructions to the main election officials of all States and Territories of the Union that the NOTA option could be applicable for elections in Rajya Sabha? 

Arguments:

Arguments of the Petitioner:

• The petitioner contended that the option of NOTA could not be applicable to elections for the Rajya Sabha. This is contrary to Article 80(4) of the Constitution of India and the decision of the Supreme Court in PUCL v. Union of India[vi].
• The Petitioner also contended that relying on the interpretation of the Rules under Part VI which makes special provisions for voting at elections by Assembly members, the scheme of the Rules and Rules 71 to 76 does not remotely conceive of NOTA but the same has been brought in by the Election Commission. The Petitioner placed reliance onRam Jawaya Kapur v. State of Punjab[vii] and Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others[viii].

Arguments of the Respondents:

• The respondents contended that the EC had issued a letter that was further reiterated on 12-11-2015. The letter reiterated that the option of NOTA would be applicable to elections for Rajya Sabha. Also, as the elections were already conducted, no justification stood for challenging the said direction at such a belated stage.
• The Respondents contended that as per PUCL’s[ix] case there is no distinction between direct and indirect elections and, hence, the provision of NOTA in the ballot paper of the elections has been made applicable by the Election Commission to Rajya Sabha to effectuate the right of electors guaranteed to them under Section 79A of the Act. 

Judgment:

Ratio Decidendi:

• The introduction of NOTA in the said election will go against the discipline expected of an elector under the Tenth Schedule of the Constitution, but will also be counterproductive to the basic grammar of a member’s disqualification law for reasons of defection. The principle is well established that what cannot be done directly cannot be done indirectly. To elaborate, if NOTA is allowed in the election of the members of the Council of States, the prohibited aspect of defection would be introduced indirectly with immense vigour.
• NOTA will destroy the concept of the value of a vote and representation and encourage desertion that will open the doors to corruption, which is a malignant disorder. It must be remembered that democracy derives its strength from the trust of the citizenship that is based only on the fundamental pillars of purity, integrity and righteousness, and that strength can only be maintained by ensuring that the election process remains immaculate and uncontaminated so that the citadel of democracy stands as an impregnable stronghold against unscrupulous forces.
• The introduction of NOTA in indirect elections may, at first sight, tempt the intellect, but in acute scrutiny, it falls to the ground, since it completely ignores the role of an elector in such an election and destroys the democratic value. It can be affirmed with gains that the idea may seem attractive, but its practical application overcomes equity rooted in an indirect choice. Even more so when the voter’s vote has value and the value of the vote is transferable.
• The NOTA option can serve as an elixir in direct elections, but with respect to the election to the Council of States, which is different, not only would it undermine the purity of democracy but it would also serve the Satan of desertion and corruption.
• When analyzing the exercise of the election of NOTA in the voting process of the Council of States where open voting is allowed and the secrecy of voting has no space and beyond where the discipline of the party / political parties is important, it is clear that such a choice will have a negative impact.
• An elector, even a single voter, has a quantified value of his vote and the excess votes are transferable. There is a formula to determine the value of the vote. The concept of voting as transferable has a different connotation. Also, it must be declared that a candidate after being elected becomes a representative of the State and does not represent a particular constituency.
• The introduction of NOTA to the election process to elect the members of the Council of States will be anathema to the fundamental criteria of democracy, which is a basic feature of the Constitution. It can be affirmed without fear of contradictions that the provisions for the introduction of NOTA, as conceived by the Electoral Commission, is highly irrational towards democracy.

Obiter Dicta:

• The Court was of the view that it is discernible that the vote of an elector has certain value and that there is the transfer of surplus votes.[x]
• The Court took consideration of the case of Lily Thomas v. Speaker, Lok Sabha, and observed that voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question and that right to vote means the right to exercise the right in favor of or against the motion or resolution and such a right implies right to remain neutral as well.
• The Court also referred to Section 79 of the 1951 Act and Rules 41(2), 41(3) and 49-O and opined that the Rules make it clear that a right not to vote has been recognized both under the 1951 Act and the Rule.
• The Court took note of the PUCL‘s case. The Court observed that the constitutional validity of Rules 41(2), 41(3) and 49-O of the Rules was challenged to the extent that the said Rules violate the secrecy of voting. This is fundamental to the concept of a free and fair election as per Section 128 of the 1951 Act and Rules 39 and 49-N of the Rules.
• The Court considered the position of the Electoral Commission that, for the general interest of promoting democracy, NOTA should be provided in the EVM / ballot papers, for such an option, in addition to promoting free and fair elections in a democracy, it will provide an opportunity for the voter to express their disagreement or disapproval against the candidates in the competition and will have the benefit of reducing the false vote. Finally, the Court held that Rules 41 (2) and 41 (3) and Rule 49-O of the Rules are ultra vires Section 128 of the 1951 Act and Article 19 of the Constitution to the extent that they violate the Secret of the vote.
• The Court took note of the case of Kuldip Nayar and others v. Union of India and others[xi] and observed that those who are elected to represent the State by the electoral college, which for present purposes means the elected Members of the Legislative Assembly of the State, are necessarily the representatives of the State.
• The Court further noted that the principle of secrecy is not an absolute principle, although this principle is intended to guarantee free and fair elections. However, the highest principle is the free and fair choice and the purity of the choice.

Conclusion:

The NOTA option was introduced for the elections of Lok Sabha and the Assembly by the Electoral Commission following an order of the Supreme Court in 2013.

The Supreme Court said that the Rajya Sabha polls were an indirect form aimed at the proportional representation of the states in the state council. Judge Deepak Mishra ruled in favor of the petitioner and confirmed the written request to abolish the option of NOTA in the elections of the Council of States, going against the circulars issued by the Electoral Commission of India that provided for option.

The Court observed that “the NOTA option would undermine the purity of democracy and will serve Satan from desertion and corruption.” The principle is well established that ‘what cannot be done directly cannot be done indirectly’. It is worth noting that in a vote for the members of the Council of States, the nature of a voter’s vote is a major concern. It is because in such an election, there is a party whip and the voter is obliged to obey the order of the party. The discipline of the party in this type of poll is extremely important since it is the point of support for the existence of the parties, which is essential in a parliamentary democracy.

From the above analysis, it is clear that the decision of the court is correct and clarifies the law.

Edited by Parul Soni

Approved & Published – Sakshi Raje 

Reference

[i] Richa Mishra, NOTA as a right, The Hindu Business Line, April 29, 2019, https://www.thehindubusinessline.com/opinion/columns/nota-as-a-right/article26983554.ece#.

[ii] Id.

[iii] Shailesh Manubhai Parmar v. Election Commission of India, (2018) 9 SCC 100.

[iv] Law Commission of India, Report No. 255 on Electoral Reforms, http://lawcommissionofindia.nic.in/reports/Report255.pdf (last visited Feb 5, 2020, 6:00 P.M).

[v] PUCL v. Union of India (2013), (2013) 10 SCC 1.

[vi] Supra note 3.

[vii]  Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225.

[viii] Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others, (1982) 1 SCC 39.

[ix] Supra note 3.

[x] Ananga Uday Singh Deo v. Ranga Nath Mishra and others

[xi] Kuldip Nayar and others v. Union of India and others, (2006) 7 SCC 1.