New Delhi: The Supreme Court on Monday felt that the none-of-the-above (Nota) option available for voters now should not apply to Rajya Sabha polls but reserved its verdict till it had interpreted election laws.
"Why does the Election Commission want to make it more complicated? The law does not permit an MLA to vote for Nota," Chief Justice Dipak Misra told advocate Amit Kumar who appeared for the poll panel.
The bench, which also included Justices A.M. Khanwilkar and D.Y. Chandrachud, was dealing with a petition that Shailesh Manubhai Parmar, the Congress's chief whip in the Gujarat Assembly, had filed in August 2017.
Parmar had challenged a notification the commission had issued last year that provided for the Nota option during the Rajya Sabha polls in Gujarat that Congress leader Sonia Gandhi's political secretary Ahmed Patel eventually won.
While attorney-general K.K. Venugopal supported the PIL, the commission had defended the Nota option.
"By this notification the EC is empowering MLAs not to vote. When he (an MLA) has a constitutional obligation to elect he can't take recourse to Nota. We have a doubt whether an MLA can refrain from voting to a candidate by marking Nota," Justice Misra told Kumar.
"When you vote for Nota, your vote is treated as invalid," Justice Chandrachud said. "Can you do that?"
Venugopal, who appeared for the central government, said Nota was applicable to "direct elections", such as those held to elect Lok Sabha MPs, and must not be applied to indirect elections like those to Parliament's upper House, where members are elected by MLAs.
Congress leader Parmar had filed the petition apprehending that some party MLAs might use the Nota option to prevent Patel from being elected.
The commission said the option has been in vogue for Rajya Sabha elections since 2014, but Parmar had chosen to challenge it in 2017.
The poll panel said a circular it issued in January 2014 had first declared the use of Nota, which was followed by another circular in November 2015.
Senior counsel Abhishek Singhvi, who appeared for Parmar, submitted that statutory rules under the Representation of People Act did not provide for Nota. The 2014 circular, he argued, "is ex facie illegal, arbitrary and tainted with malafides, as an executive instruction cannot override express statutory provisions".
Parmar's petition had earlier alleged that the poll panel, "despite being the constitu0tional watchdog for ensuring free and fair elections, has become a tool in the hands of the ruling dispensation to facilitate violation of the provisions of the Constitution".
