NOTA – Not permissible for Legislative Council elections – Supreme Court of India

0Shares

NOTA – Not permissible for Legislative Council elections – Supreme Court of India.

Judgment Link:  https://www.sci.gov.in/supremecourt/2017/23162/23162_2017_Judgement_21-Aug-2018.pdf

Shailesh Manubhai Parmar  vs Election Commission of India Through The Chief Election Commissioner & Ors

28…….In view of the aforesaid analysis, the writ petition is allowed
and the circulars issued by the Election Commission, the first
respondent herein, introducing NOTA in respect of elections to
the Council of States are hereby quashed. There shall be no
order as to costs.

FULL JUDGMENT:

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.631 OF 2017
Shailesh Manubhai Parmar … Petitioner
Versus
Election Commission of India Through
The Chief Election Commissioner & Ors. … Respondents
J U D G M E N T
Dipak Misra, CJI.
In the instant writ petition preferred under Article 32 of the
Constitution of India, 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, 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‖
(NOTA).
2
2. It is asserted that the Election Commission of India had
issued directions to the Chief Electoral Officers of all the States
and the Union Territories (except Andaman & Nicobar Islands,
Chandigarh, Dadra & Nagar Haveli, Daman & Diu and
Lakshadweep) directing that the option of NOTA could be
applicable for elections in the Rajya Sabha and the said option
shall be printed on the ballot paper in the language or languages
in which the ballot paper is printed as per the directions issued
by the Election 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, 1961 (for short, ‗the Rules‘). Reference has
been made to the communication dated 12th November, 2015 by
the 1st respondent to the Chief Electoral Officers of all the States
giving further directions regarding the manner of voting in
preferential system but we are only concerned with the
applicability of NOTA to the Rajya Sabha elections. It is
contended in the petition that the circulars issued by the Election
Commission of India introducing NOTA to the elections in respect
of members of the Rajya Sabha are contrary to the mandate of
Article 80(4) of the Constitution of India and the decision of this
Court in People’s Union for Civil Liberties and another v.
3
Union of India and another (PUCL)1. It does not lend any
support to the understanding of the Election Commission for
introducing such an option in respect of Rajya Sabha elections.
It is averred that Section 59 of the Representation of the People
Act, 1951 (for brevity, ‗the 1951 Act‘) provides for the manner of
voting at elections and Section 169 empowers the Central
Government, after consulting the Election Commission, to make
rules for carrying out the purposes of this Act. Reference has
been made to Part VI of the Rules which makes special provisions
for voting at elections by Assembly members and Rule 70
provides that Rules 37(8) to 40A shall apply. Relying on the
interpretation of the said Rules, it is urged that the scheme of the
Rules referred to above and Rules 71 to 76 do not remotely
conceive of NOTA but the same has been brought in by issuance
of circular by the Election Commission and, hence, the same is
unconstitutional.
3. A counter affidavit has been filed by the 1st respondent
contending, inter alia, that the constitutional courts do not
interdict in the election process and challenge can only be made
after the election is over by filing an election petition before the

1
(2013) 10 SCC 1
4
appropriate court; that as per the pronouncement in PUCL‘s
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; that though there is no need
for secrecy 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 by expressing the option of NOTA; that even assuming
the position that the judgment in PUCL‘s case does not indicate
that this Court ever intended to apply the option of NOTA to
Rajya Sabha elections, yet the Election Commission has issued
letter dated 24th January, 2014 and further reiterated by letter
dated 12th November, 2015 that the option of NOTA would be
applicable to elections in Rajya Sabha; and that elections had
already been held by applying the said option and, therefore,
there is no justification to challenge the said directions at a
belated stage. Be it noted, the first two points were advanced as
preliminary objections and all the other grounds raised pertained
to the validity of the circular issued by the 1st respondent.
5
4. We may immediately note that the issue of introduction of
an election process does not arise in the present case. As regards
the issue of maintainability of the writ petition, no argument was
advanced in that regard and, we have no hesitation to say,
correctly so.
5. To understand and appreciate the controversy, it is
imperative to scrutinize what has been envisaged under Article
80(4) of the Constitution. Article 80 deals with the composition
of the Council of States. Article 80(4) reads as follows:-
―(4) The representatives of each State in the
Council of States shall be elected by the
elected members of the Legislative Assembly of
the State in accordance with the system of
proportional representation by means of the
single transferable vote.‖
6. In Ananga Uday Singh Deo v. Ranga Nath Mishra and
others 2 , a three-Judge Bench has dealt with the nature of
election to the Council of States. It is useful to reproduce a few
passages from the same:-
―41. The system of proportional representation
by single transferable vote comes into
operation only if there is more than one
candidate to be elected. The election is held by
multi-member constituencies. All the
candidates who compete for the seats allotted
to a constituency have their names printed on

2
(2002) 1 SCC 499
6
one ballot paper. Each elector has only one
vote in the sense that it will be capable of
electing one candidate only. But that vote will
not be wasted in case the candidate whom he
wishes to elect has got more than the required
number of votes, called the ―quota‖. The elector
is required to indicate his multiple preferences
by placing the figures 1, 2 and 3 in order of
preferences. The surplus votes in the hands of
the candidates declared elected are transferred
to the then candidates.‖
x x x x
43. Rule 74 provides that the Returning Officer
after rejecting the ballot papers which are
invalid arrange the remaining ballot papers in
parcels according to the first preference
recorded for each candidate; count and record
the number of papers in each parcel and the
total number; and credit to each candidate the
value of the papers in his parcel. Rule 76
provides for ascertainment of quota. It provides
that at any election where more than one seat
is to be filled, every valid ballot paper shall be
deemed to be of the value of 100, and the
quota sufficient to secure the return of a
candidate at the election shall be determined
by adding the value credited to all the
candidates and then dividing the total by a
number which exceeds by one the number of
vacancies to be filled and then to add one to
the quotient ignoring the remainder, if any,
and the resulting number is the quota. In
simple words it would work as 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 end of the transfer of any
parcel or sub-parcel of an excluded candidate
7
the value of ballot papers credited to a
candidate is equal to, or greater than the
quota, that candidate shall be declared
elected.‖
7. Presently, we may refer to Rules 79, 80 and 81 of the Rules
which read as follows:-
―79. Transfer of surplus.—(1) If at the end of
any count the value of the ballot papers
credited to a candidate is greater than the
quota, the surplus shall be transferred, in
accordance with the provisions of this Rule, to
the continuing candidates indicated on the
ballot papers of that candidate as being next in
order of the elector‘s preference.
(2) If more than one candidate have a surplus,
the largest surplus shall be dealt with first and
the others in order of magnitude:
Provided that every surplus arising on the first
count shall be dealt with before those arising
on the second count and so on.
(3) Where there are more surpluses than one
to distribute and two or more surpluses are
equal, regard shall be had to the original votes
of each candidate and the candidate for whom
most original votes are recorded shall have his
surplus first distributed; and if the values of
their original votes are equal, the returning
officer shall decide by lot which candidate shall
have his surplus first distributed.
(4)(a) If the surplus of any candidate to be
transferred arises from original votes only, the
returning officer shall examine all the papers
in the parcel belonging to that candidate,
8
divide the unexhausted papers into subparcels
according to the next preferences
recorded thereon and make a separate subparcel
of the exhausted papers.
(b) He shall ascertain the value of the papers
in each sub-parcel and of all the unexhausted
papers.
(c) If the value of the unexhausted papers is
equal to or less than the surplus, he shall
transfer all the unexhausted papers at the
value at which they were received by the
candidate whose surplus is being transferred.
(d) If the value of the unexhausted papers is
greater than the surplus, he shall transfer the
sub-parcels of unexhausted papers and the
value at which each paper shall be transferred
shall be ascertained by dividing the surplus by
the total number of unexhausted papers.
(5) If the surplus of any candidate to be
transferred arises from transferred as well as
original votes, the returning officer shall reexamine
all the papers in the sub-parcel last
transferred to the candidate, divide the
unexhausted papers into sub-parcels
according to the next preferences recorded
thereon, and then deal with the sub-parcels in
the same manner as is provided in the case of
sub-parcels referred to in sub-rule (4).
(6) The papers transferred to each candidate
shall be added in the form of a sub-parcel to
the papers already belonging to such
candidate.
(7) All papers in the parcel or sub-parcel of an
elected candidate not transferred under this
Rule shall be set apart as finally dealt with.
9
80. Exclusion of candidates lowest on the
poll.—(1) If after all surpluses have been
transferred as hereinbefore provided, the
number of candidates elected is less than the
required number, the returning officer shall
exclude from the poll the candidate lowest on
the poll and shall distribute his unexhausted
papers among the continuing candidates
according to the next preferences recorded
thereon; and any exhausted papers shall be
set apart as finally dealt with.
(2) The papers containing original votes of an
excluded candidate shall first be transferred,
the transfer value of each paper being one
hundred.
(3) The papers containing transferred votes of
an excluded candidate shall then be
transferred in the order of the transfers in
which, and at the value at which, he obtained
them.
(4) Each of such transfers shall be deemed to
be a separate transfer but not a separate
count.
(5) If, as a result of the transfer of papers, the
value of votes obtained by a candidate is equal
to or greater than the quota, the count then
proceeding shall be completed but no further
papers shall be transferred to him.
(6) The process directed by this Rule shall be
repeated on the successive exclusions one
after another of the candidates lowest on the
poll until such vacancy is filled either by the
election of a candidate with the quota or as
hereinafter provided.
10
(7) If at any time it becomes necessary to
exclude a candidate and two or more
candidates have the same value of votes and
are the lowest on the poll, regard shall be had
to the original votes of each candidate and the
candidate for whom fewest original votes are
recorded shall be excluded; and if the values of
their original votes are equal the candidates
with the smallest value at the earliest count at
which these candidates had unequal values
shall be excluded.
(8) If two or more candidates are lowest on the
poll and each has the same value of votes at all
counts the returning officer shall decide by lot
which candidate shall be excluded.
81. Filling the last vacancies.—(1) When at
the end of any count the number of continuing
candidates is reduced to the number of
vacancies remaining unfilled, the continuing
candidates shall be declared elected.
(2) When at the end of any count only one
vacancy remains unfilled and the value of the
papers of some one candidate exceeds the total
value of the papers of all the other continuing
candidates together with any surplus not
transferred, that candidate shall be declared
elected.
(3) When at the end of any count only one
vacancy remains unfilled and there are only
two continuing candidates and each of them
has the same value of votes and no surplus
remains capable of transfer, the returning
officer shall decide by lot which of them shall
be excluded; and after excluding him in the
manner aforesaid, declare the other candidate
to be elected.‖
11
8. In Ananga Uday Singh Deo (supra), interpreting the said
Rules, the Court held :-
―46. Rule 79 comes into operation in case a
candidate or more than one candidate has
received more votes than the required quota. If
at the end of any count the value of the ballot
papers credited to a candidate is greater than
the quota, the surplus shall be transferred in
accordance with the provisions of this Rule, to
the continuing candidates indicated on the
ballot papers of that candidate as being next in
order of the elector‘s preference. After working
out the surplus votes in order of preference in
favour of the remaining candidates, the
surplus votes are transferred to the remaining
candidates and added to the value of votes
polled by that candidate. In this exercise if any
candidate reaches the requisite quota, then he
is declared elected.
47. If no candidate wins on transfer of the
surplus votes obtained by him from the
surplus of votes from the candidate who is
already declared elected, then the provision of
exclusion of candidates lowest on polled votes
as provided under Rule 80 comes into
operation. The Returning Officer then excludes
from the poll the candidate lowest on the poll
and distributes his unexhausted ballot papers
among the continuing candidates according to
the next preference recorded thereon. The
process is continued till the total number of
vacancies is filled up.‖
From the aforesaid analysis by the Court, it is discernible
that the vote of an elector has certain value and that there is
transfer of surplus votes.
12
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 Rules violate the secrecy of voting which is fundamental to
the concept of free and fair election and is required to be
maintained as per Section 128 of the 1951 Act and Rules 39 and
49-N of the Rules. The Court referred to the decision in Lily
Thomas v. Speaker, Lok Sabha and others3 wherein it has
been stated 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 favour of or against the motion or resolution and such a
right implies right to remain neutral as well. Thereafter, the
Court referred to Section 79 of the 1951 Act and Rules 41(2),
41(3) and 49-O of the Rules and opined that the Rules make it
clear that a right not to vote has been recognized both under the
1951 Act and the Rules. It further expressed:-
―….A positive ―right not to vote‖ is a part of
expression of a voter in a parliamentary
democracy and it has to be recognised and
given effect to in the same manner as ―right to
vote‖. A voter may refrain from voting at an
election for several reasons including the
reason that he does not consider any of the
candidates in the field worthy of his vote. One

3
(1993) 4 SCC 234
13
of the ways of such expression may be to
abstain from voting, which is not an ideal
option for a conscientious and responsible
citizen. Thus, the only way by which it can be
made effectual is by providing a button in the
EVMs to express that right. This is the basic
requirement if the lasting values in a healthy
democracy have to be sustained, which the
Election Commission has not only recognised
but has also asserted.‖
10. The Court considered the stand of the Election Commission
that in the larger interest of promoting democracy, a provision for
NOTA should be made in the EVMs/ballot papers, for such an
option, apart from promoting free and fair elections in a
democracy, will provide an opportunity to the elector to express
his dissent or disapproval against the contesting candidates and
will have the benefit of reducing bogus voting. Eventually, 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 they violate secrecy of voting.
However, the Court held:-
―57. Giving right to a voter not to vote for any
candidate while protecting his right of secrecy
is extremely important in a democracy. Such
an option gives the voter the right to express
his disapproval with the kind of candidates
that are being put up by the political parties.
When the political parties will realise that a
large number of people are expressing their
disapproval with the candidates being put up
14
by them, gradually there will be a systemic
change and the political parties will be forced
to accept the will of the people and field
candidates who are known for their integrity.
58. The direction can also be supported by the
fact that in the existing system a dissatisfied
voter ordinarily does not turn up for voting
which in turn provides a chance to
unscrupulous elements to impersonate the
dissatisfied voter and cast a vote, be it a
negative one. Furthermore, a provision of
negative voting would be in the interest of
promoting democracy as it would send clear
signals to political parties and their candidates
as to what the electorate thinks about them.‖
[Emphasis added]
11. On the basis of the aforesaid analysis, the Court directed
the Election Commission to make necessary provision in the
ballot papers/EVMs for another button called ―None of the above
(NOTA)‖ so that the voters, who come to the polling booth and
decide not to vote for any of the candidates in the fray, are able to
exercise their right not to vote while maintaining their right of
secrecy.
12. In this context, understanding of the principle laid down in
Kuldip Nayar and others v. Union of India and others4 in
that regard is quite instructive. Interpreting the words

4
(2006) 7 SCC 1
15
‗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
are elected to represent the State in the
Council of States. It is the election that makes
the person elected the ―representative‖. In
order to be eligible to be elected to the Council
of States, a person need not be a
representative of the State beforehand. It is
only when he is elected to represent the State
that he becomes a representative of the State.
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 aforesaid passage shows the nature of representation in
the Council of States. It is clear as crystal that the nature of the
representative is different, for he becomes a representative of the
State. This is in contradistinction to an elected candidate who is
elected by the voters in a direct election because he represents a
constituency.
13. We may further note with profit that in the said case, the
Court had adverted to secrecy of voting for the election of the
Council of States. The Court noted that in the wake of ―emerging
trend of cross-voting in the Rajya Sabha and Legislative Council
16
elections‖, elections ―by open ballot‖ were incorporated. The
Court further noted that the cumulative effect of the amendments
to Sections 59, 94 and 128 of the Act brought about by Act 40 of
2003 is that election for filling up of seats in the Council of States
is to be held by open ballot and the requirements of maintenance
of secrecy of voting is now made subject to an exception
mentioned in the proviso. The Court adverted to the concept of
free and fair elections and noted the contention that the
disclosure of choice or any fear or compulsion or even a political
pressure under a whip goes against the concept of free and fair
elections and that immunity from such fear or compulsion can be
ensured only if the election is held on the principle of secret
ballot.
14. Adverting to various decisions, the larger Bench opined that
the procedure by which an election has to be held should further
the object of free and fair election and as the Parliament noted
that in election to the Council of States, members elected on
behalf of political parties misuse the secret ballot and cross-vote
and there had been breach of discipline by political parties for
collateral and corrupt considerations, it legislated to provide for
an open ballot. The Court further observed that the principle of
17
secrecy is not an absolute principle though the said principle is
meant to ensure free and fair elections. However, the higher
principle is free and fair election and purity of election. The
larger Bench further proceeded to state:-
―464. The secrecy of ballot is a vital principle
for ensuring free and fair elections. The higher
principle, however, is free and fair elections
and purity of elections. If secrecy becomes a
source for corruption then sunlight and
transparency have the capacity to remove it.
We can only say that legislation pursuant to a
legislative policy that transparency will
eliminate the evil that has crept in would
hopefully serve the larger object of free and fair
elections.‖
15. We may presently refer to the notification issued by the
Election Commission on 24.01.2014. After referring to the PUCL‘s
judgment and the doubt expressed with regard to the
applicability of the option of NOTA during elections of Rajya
Sabha, the Commission has instructed thus:-
―The Commission has dully considered the
matter and it has been decided that the NOTA
option will also be applicable for elections to
Rajya Sabha. Accordingly, the Commission
hereby directs that after the name and
particulars of the last candidate on the ballot
paper another panel may be provided and the
words ―None of the above (NOTA)‖ shall be
printed therein in the language or languages in
which the ballot paper is printed as per
direction issued by the Commission in
pursuance of Sub-Rule (1) of Rule 22 and Sub-
18
Rule (1) of Rule 30, read with Rule 70 of the
Conduct of Election Rules, 1961.
2. Please bring the above instructions to the
notice of the Returning Officers for Conduct of
Elections to the Council of States for
compliance during the current biennial
elections to Rajya Sabha already announced to
fill up the vacancies to be caused in the month
of April 2014 and all future elections to Rajya
Sabha.
3. Necessary instruction with regard to
marking of ballot paper for exercising the
option of ―None of the Above‖ and the counting
of votes in view of the above option will be
issued shortly.‖
16. A further circular has been issued on 12.11.2015 which
lays down thus:-
―2. It has been brought to the notice of the
Commission that there have been some cases
where electors, having marked Ist preference
against one of the candidates put cross mark
or mentioned subsequent preference (2nd, 3rd,
etc.) against NOTA, which have led to rejection
of the ballot paper. In the light of such cases,
the Commission has considered the matter
afresh and, with a view to ensuring the
compliance of rule 73(2) of the CE Rules 1961
and adoption of a uniform approach towards
the requirement of providing for NOTA option
and the manner of voting in preferential
system using single transferable vote, the
Commission has given the following directions
for exercising of NOTA option in elections to
Rajya Sabha and State Legislative Councils:-
19
(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 in
international form of Indian numerals or in the
Roman form or in any Indian language;
(ii) If preference ‗1‘ is marked against NOTA,
it shall be treated as a case of not voting for
any of the candidates and such ballot shall be
treated as invalid, even if ‗1‘ is also marked
against any other candidate in addition to
being marked against NOTA;
(iii) If 1st preference is validly marked against
one of the candidates, and 2nd preference is
marked against NOTA, such ballot paper shall
be treated as valid for the candidate for whom
1st preference has been marked, provided there
is no other ground to invalidate it, under rule
73(2). In such case, at the stage of examining
2nd preference, the ballot paper shall be treated
as exhausted as the 2nd preference is marked
against NOTA. Similarly, if 1st
and 2nd
preferences are validly marked against a
candidate each and 3rd preference is marked
against NOTA, the ballot shall be valid for the
first count and for the purposes of the 2nd
preference, but, at the stage of examining the
3rd preference, if such stage comes, the ballot
shall be treated as exhausted. These
instructions shall apply for subsequent
preferences also.
(iv) If 1st preference and subsequent
preferences, if any, are validly marked against
the candidates and cross/tick is marked
against NOTA, the ballot paper shall not be
rejected as invalid only on this ground, and the
preferences marked against the candidates
shall be considered and counted accordingly.
However, the general provisions of the rules
and the Commission’s instructions regarding
marks that may identify the voter shall apply
in the case of the mark against NOTA option,
and if the RO considers that the mark put
20
therein reasonably points towards
identification of the voter within the meaning
of rule 73(2)(d), that would render the ballot
liable to rejection on that ground.‖
17. In the instructions to the voters for casting vote in Rajya
Sabha, it has been stated that:-
―5. Out of the candidates shown in the Ballot
Paper, if you do not want to elect any
candidate, then in the column ―Show your
Order of Preference‖, against ―NOTA‖ figure of
―1‖ is required to be shown. 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 one candidate or against
―NOTA‖.‖
18. The criticism advanced is that the circulars are not in
accordance with the procedure envisaged under the 1951 Act and
the Rules. Placing reliance on Ram Jawaya Kapur v. State of
Punjab5 and Bishambhar Dayal Chandra Mohan and others
v. State of Uttar Pradesh and others6, it is urged that it is
beyond the power of the Election Commission, the first
respondent herein, to introduce NOTA to the elections of the
members to the Council of States. As we notice, the Election
Commission has treated the pronouncement in PUCL‘s case as

5
(1955) 2 SCR 225
6
(1982) 1 SCC 39
21
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. In Kuldip
Nayar (supra), the Constitution Bench has drawn the distinction
by expressing thus:-
―441. Voting at elections to the Council of
States cannot be compared with a general
election. In a general election, the electors have
to vote in a secret manner without fear that
their votes would be disclosed to anyone or
would result in victimisation. There is no party
affiliation and hence the choice is entirely with
the voter. This is not the case when elections
are held to the Council of States as the electors
are elected Members of the Legislative
Assemblies who in turn have party
affiliations.‖
And again:-
―454. The distinguishing feature between
―constituency-based representation‖ and
22
―proportional representation‖ in a
representative democracy is that in the case of
the list system of proportional representation,
members are elected on party lines. They are
subject to party discipline. They are liable to be
expelled for breach of discipline. Therefore, to
give effect to the concept of proportional
representation, Parliament can suggest ―open
ballot‖. In such a case, it cannot be said that
“free and fair elections” would stand defeated
by “open ballot”. As stated above, in a
constituency-based election it is the people who
vote whereas in proportional representation it is
the elector who votes. This distinction is
indicated also in the Australian judgment in R.
v. Jones7.In constituency-based representation,
―secrecy‖ is the basis whereas in the case of
proportional representation in a representative
democracy the basis can be ―open ballot‖ and it
would not violate the concept of ―free and fair
elections‖, which concept is one of the pillars of
democracy.‖
19. The aforesaid passages throw immense light on the
distinction between direct and indirect elections and especially on
the concept of indirect election which encompasses proportional
representation. 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. It is worth to note that in a voting for
members of the Council of States, the nature of voting by an

7
(1972) 128 CLR 221
23
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. In this context, we may refer with
profit to the authority in Ravi S. Naik v. Union of India and
others 8 . In the said case, the question arose relating to the
disqualification of a Member of the State Legislature under Article
191(2) read with the Tenth Schedule to the Constitution. The
two-Judge Bench referred to the decision in Kihoto Hollohan v.
Zachillhu and others 9 and addressed the issue of defection
covered under paragraphs 2(1)(a) and 2(1)(b) of the Tenth
Schedule. Referring to the said paragraphs, the Court ruled:-
―….The said paragraph provides for
disqualification of a member of a House
belonging to a political party ―if he has
voluntarily given 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 may voluntarily give up his
membership of a political party even though he

8
1994 Supp (2) SCC 641
9
1992 Supp (2) SCC 651
24
has not tendered his resignation from the
membership of that party. Even in the absence
of a formal resignation from membership an
inference can be drawn from the conduct of a
member that he has voluntarily given up his
membership of the political party to which he
belongs.‖
20. Paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule to the
Constitution read as under:-
―1) Subject to the provisions of paragraphs 4
and 5, a member of a House belonging to any
political party shall be disqualified for being a
member of the House—
(a) if he has voluntarily given up his
membership of such political party; or
(b) if he votes or abstains from voting in such
House contrary to any direction issued by the
political party to which he belongs or by any
person or authority authorized by it in this
behalf, without obtaining, in either case, the
prior permission of such political party, person
or authority and such voting or abstention has
not been condoned by such political party,
person or authority within fifteen days from
the date of such voting or abstention.
Explanation – For the purposes of this subparagraph,-
(a) an elected member of a House shall be
deemed to belong to the political party, if any,
by which he was set up as a candidate for
election as such member;
(b) a nominated member of a House shall,-
(i) where he is a member of any political
party on the date of his nomination as such
25
member, be deemed to belong to such political
party;
(ii) in any other case, be deemed to belong to
the political party of which he becomes, or, as
the case may be, first becomes, a member
before the expiry of six months from the date
on which he takes his seat after complying
with the requirements of article 99 or, as the
case may be, article 188.‖
21. The appellants therein were disqualified by the Speaker of
the House under the Goa Legislative Assembly (Disqualification
on Grounds of Defection) Rules, 1986. Dealing with the
aspect of disqualification, the Court ruled:-
―A candidate voluntarily gives up his
membership and inference can be drawn from
his conduct that he has voluntarily given up
the membership of the political party.‖
A distinction has been drawn between resignation and
voluntarily giving up.
22. It is demonstrable that an elector can be disqualified if he
voluntarily gives up his membership of the political party. It is
submitted by Dr. Abhishek Manu Singhvi that an elector
belonging to a particular party may not voluntarily give up the
membership but can exercise his choice of NOTA despite his
political party setting up a candidate. According to the learned
senior counsel, this creates an anomalous situation and brings in
horse trading, corruption and use of extra constitutional methods
26
which were sought to be avoided by the introduction of the Tenth
Schedule in the Constitution by the Constitution (Fifty-Second
Amendment) Act, 1985. It is necessary to mention here that the
said amendment was introduced to eradicate the evil of political
defection. The Statement of Objects and Reasons to the said
amendment provides thus:-
―The evil of political defections has been a
matter of national concern. If it is not
combated, it is likely to undermine the very
foundations of our democracy and the
principles which sustain it. With this object, an
assurance was given in the Address by the
President to Parliament that the Government
intended to introduce in the current session of
Parliament an anti-defection Bill. This Bill is
meant for outlawing defection and fulfilling the
above assurance.‖
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.
23. In a democracy, the purity of election is categorically
imperative. The democratic body polity, as has been held in
Manoj Narula v. Union of India 10 , stipulates that the
quintessential idea of democracy is abhorrent to corruption and
laws emphasize on prevalence of genuine orderliness, positive

10 (2014) 9 SCC 1
27
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. 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. It further needs to
be stated that 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. It can be stated without any fear of
28
contradiction that the provisions for introduction of NOTA as
conceived by the Election Commission, the first respondent
herein, on the basis of the PUCL judgment is absolutely
erroneous, for the said judgment does not say so. We are
disposed to think that the decision could not have also said so
having regard to the constitutional provisions contained in Article
80 and the stipulations provided under the Tenth Schedule to the
Constitution. 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. To elaborate, 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.
24. We may further add with profit that 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,
29
the said decision is directly relatable to a direct election, one
man, one vote and one value.
25. In this context, we may usefully refer to Article 324 of the
Constitution. It reads thus:-
―324. Superintendence, direction and control
of elections to be vested in an Election
Commission
(1) The superintendence, direction and control
of the preparation of the electoral rolls for, and
the conduct of, all elections to Parliament and
to the Legislature of every State and of
elections to the offices of President and Vice
President held under this Constitution shall be
vested in a Commission (referred to in this
Constitution as the Election Commission)
(2) The Election Commission shall consist of
the Chief Election Commissioner and such
number of other Election Commissioners, if
any, as the President may from time to time fix
and the appointment of the Chief Election
Commissioner and other Election
Commissioners shall, subject to the provisions
of any law made in that behalf by Parliament,
be made by the President
(3) When any other Election Commissioner is
so appointed the Chief Election Commissioner
shall act as the Chairman of the Election
Commission
(4) Before each general election to the House of
the People and to the Legislative Assembly of
each State, and before the first general election
and thereafter before each biennial election to
the Legislative Council of each State having
such Council, the President may also appoint
after consultation with the Election
Commission such Regional Commissioners as
he may consider necessary to assist the
Election Commission in the performance of the
30
functions conferred on the Commission by
clause (1)
(5) Subject to the provisions of any law made
by Parliament, the conditions of service and
tenure of office of the Election Commissioners
and the Regional Commissioners shall be such
as the President may by rule determine;
Provided that the Chief Election Commissioner
shall not be removed from his office except in
like manner and on the like grounds as a
Judge of the Supreme Court and the
conditions of service of the Chief Election
Commissioner shall not be varied to his
disadvantage after his appointment: Provided
further that any other Election Commissioner
or a Regional Commissioner shall not be
removed from office except on the
recommendation of the Chief Election
Commissioner
(6) The President, or the Governor of a State,
shall, when so requested by the Election
Commission, make available to the Election
Commission or to a Regional Commissioner
such staff as may be necessary for the
discharge of the functions conferred on the
Election Commission by clause ( 1 )‖
26. Interpreting the said Article, the Constitution Bench in
Kuldip Nayar (supra) held:-
―427. In this context, we would say that where
the law on the subject is silent, Article 324 is a
reservoir of power for the Election Commission
to act for the avowed purpose of pursuing the
goal of a free and fair election, and in this view
it also assumes the role of an adviser. But the
power to make law under Article 327 vests in
Parliament, which is supreme and so, not
bound by such advice. We would reject the
argument by referring to what this Court has
already said in Mohinder Singh Gill (1978) 1
31
SCC 405 and what bears reiteration here is
that the limitations on the exercise of ―plenary
character‖ of the Election Commission include
one to the effect that ―when Parliament or any
State Legislature has made valid law relating to
or in connection with elections, the
Commission, shall act in conformity with, not
in violation of, such provisions‖
From the aforesaid passage, it is quite clear that 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.
27. It can be said without a speck of doubt that the decision
taken by the Election Commission as regards the introduction of
NOTA in the election of the members to the Council of States also
runs counter to what has been stated hereinabove. NOTA will
destroy the concept of value of a vote and representation and
encourage defection that shall open the doors for corruption
which is a malignant disorder. It has to be remembered that
32
democracy garners its strength from the citizenry trust which is
sustained only on the foundational pillars of purity, integrity,
probity and rectitude and such stronghold can be maintained
only by ensuring that the process of elections remains unsullied
and unpolluted so that the citadel of democracy stands tall as an
impregnable bulwark against unscrupulous forces. The
introduction of NOTA in indirect elections 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 in such an election
and fully destroys the democratic value. It may be stated with
profit that the idea may look attractive but its practical
application defeats the fairness ingrained in an indirect election.
More so where the elector‘s vote has value and the value of the
vote is transferrable. It is an abstraction which does not
withstand the scrutiny of, to borrow an expression from Krishna
Iyer, J., the ―cosmos of concreteness‖. We may immediately add
that 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 as discussed above, it would not only undermine the
purity of democracy but also serve the Satan of defection and
corruption.
33
28. In view of the aforesaid analysis, the writ petition is allowed
and the circulars issued by the Election Commission, the first
respondent herein, introducing NOTA in respect of elections to
the Council of States are hereby quashed. There shall be no
order as to costs.
…………………………….CJI.
(Dipak Misra)
…………………………………J.
(A.M. Khanwilkar)
…………………………………J.
(Dr. D.Y. Chandrachud)
NEW DELHI;
AUGUST 21, 2018