TaxTMI 
TaxTMI 
2018 (8) TMI 1823
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....tion 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. Union of India and another (PUCL) (2013) 10 SCC 1). It does not lend any support to the understanding of the Election Commission for introducing such an option in resp....
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....rocess 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(2002) 1 SCC 499), 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 const....
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....th 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, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon and make a separate sub-parcel 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....
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.... 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 ....
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....39 and 49-N of the Rules. The Court referred to the decision in Lily Thomas v. Speaker, Lok Sabha and others(1993) 4 SCC 234) 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 of the ways of such expression may be to abstain from voting, which is not an ideal option for a conscientious and r....
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....le 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 others(2006) 7 SCC 1 15) in that regard is 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 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....
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....t 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-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 o....
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....ence, 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 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.....
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....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. Jones(1972) 128 CLR 221).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 ....
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.... 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 sub-paragraph,- (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 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 mem....
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....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 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 n....
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....ter 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 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 ....