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TMI Blog2018 (8) TMI 1823X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 - petition allowed. - Writ Petition (Civil) No.631 Of 2017 - - - Dated:- 21-8-2018 - Dipak Misra, A.M. Khanwilkar And Dr. D.Y. Chandrachud, JJ. JUDGMENT Dipak Misra, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssent 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lot 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- (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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer with profit to the authority in Ravi S. Naik v. Union of India and others(1994 Supp (2) SCC 641). 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(1992 Supp (2) SCC 651) 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 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 witho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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