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Issue of NOTA in Rajya Sabha Elections
Aug 05, 2017

[GS Paper II: (Parliament and state legislatures - structure, functioning, conduct of business, powers and privileges and issues arising out of these)]

On August 3, the Supreme Court refused to stay an Election Commission (EC) notification that introduced NOTA in the Rajya Sabha (RS) elections.

Background

The Election Commission had earlier released a notification that provides MLAs the NOTA (None of the above) option for elections to the three Rajya Sabha seats from Gujarat. The notification led to concerns being raised by major political parties.

Concerns raised by the Political Parties

  • The political parties are concerned that MLAs could defy the party whip and invalidate their votes by opting for NOTA. 
  • The parties also argued that since there is open ballot for the voting in Rajya Sabha election, there is not much point in introducing NOTA.
  • The political parties also questioned the authority of the EC to introduce this measure without a Constitutional amendment.

How will the NOTA work in RS elections?

  • According to Article 80(4) of the Constitution, the representatives of each State in the Rajya Sabha 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 a single transferable vote.
  • A candidate has to get a required number of votes calculated through a formula to get elected to Rajya Sabha. 
  • The total number of votes (MLAs) are divided by the number of seats going to the polls from the State, adding one vote to the number. 
  • In Rajya Sabha polls, the MLAs have to show their ballot paper to an authorised party agent before putting it in ballot box. 
  • If a member from a party exercises the NOTA option, then the total number of votes cast will go down.
  • The impact of the decision of MLAs to exercise the NOTA option in elections to the Rajya Sabha will be the same as that of an abstention.
  • In Kuldip Nayar v. Union of India (2006), the Supreme Court has held that open ballot votes in Rajya Sabha elections against the whip will not lead to disqualification as per the Tenth Schedule (Anti-defection Law).
  • But the party will be free to take disciplinary action including expulsion. The defiant voter can continue to be an MLA and his vote can also not be invalidated for defying party directions.

What is NOTA?

  • The Supreme Court in PUCL v. Union of India, 2013 directed the use of NOTA in the context of direct elections to the Lok Sabha and the respective State Assemblies. 
  • The judgment delineated that in a direct election the voters must be given an option to choose “None of the above” to express their dissatisfaction with all the candidates/ political parties on the ballot. 

Way forward

  • The presence of the NOTA option for the legislator allows the possibility of a protest vote against the party high command for choosing candidates who are not agreeable to her, without having to choose candidates from opposing parties. 
  • The principle of a protest vote remains the same even if these are indirect elections. 
  • Therefore, instead of struggling against the democratisation of indirect elections, through reforms such as the NOTA option, parties would be better off accepting the trend towards increasing democratization and selection of candidates on merit. 

Whip

  • Every political party, whether ruling or Opposition has its own whip in the Parliament. He is appointed by the political party to serve as an assistant floor leader.
  • He is charged with the responsibility of ensuring the attendance of his party members in large numbers and securing their support in favour of or against a particular issue.
  • He regulates and monitors their behaviour in the Parliament. The members are supposed to follow the directives given by the whip. Otherwise, disciplinary action can be taken.
  • The office of ‘whip’ is mentioned neither in the Constitution of India nor in the Rules of the House nor in a Parliamentary Statute. It is based on the conventions of the parliamentary government


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