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).   

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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.

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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

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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.

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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

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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

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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,

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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 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 re- examine 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.

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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.  

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(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.‖  

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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.  

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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

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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

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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

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‗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

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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

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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-

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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:-   

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(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

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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

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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

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―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 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

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

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