TaxTMI 
TaxTMI 
2018 (8) TMI 1823
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....lections 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 respect of Rajya Sabha elections. It is av....
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....e. 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 constituency have their names printed on one ballot paper.....
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.... 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 value at which they were received by the candidate whose surplus is being transferred. (d) If the value of the unexhau....
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.... 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 ....
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.... 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 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 Electio....
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....preting 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 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 bec....
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....er 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 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 opt....
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....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. 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 a....
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....inction 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 election. It is worth to note that in a voting for members of the Council of States, the nature of voting 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 of the party. The party discipline in this kind of election is of extreme significance, for that is the fulcrum o....
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....tion 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 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 ....
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....mining 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 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 t....
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....he 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 t....