IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

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1 1 IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) BETWEEN: SHAILESH MANUBHAI PARMAR MLA, (54) Dani Limbda Assembly Constituency Chief Whip, (INC), R/o 22, Vir Arjun Society, Railway Crossing NawaVadaj Ahmedabad Versus...PETITIONER 1. ELECTION COMMISSION OF INDIA Through its Chief Election Commissioner, NirvachanSadan,Ashoka Road, New Delhi RESPONDENT NO UNION OF INDIA Through its Secretary, Ministry of Home Affairs, Central Secretariat, North Block, New Delhi 01. RESPONDENT NO GUJARAT VIDHAN SABHA Through its Secretary Gujarat Legislature Secretariat, Viththalbhai PatelBhavan, Sector-10, Gandhinagar, Gujarat. RESPONDENT NO SHRI D.M. PATEL Returning Officer, Election to the Council of States, Gujarat Legislature Secretariat, Swarnim Sankul-2, Sector-10, Gandhinagar , Gujarat. RESPONDENT NO. 4 ALL ARE CONTESTING RESPONDENTS

2 WRIT PETITION UNDER ARTICLE 32 R/W ARTICLE 14 OF THE CONSTITUTION OF INDIA CHALLENGING THE VALIDITY OF THE CIRCULAR DATED ISSUED BY THE ELECTON COMMISSION OF INDIA IN RESPECT OF THE APPLICABILITY OF THE NOTA OPTION FOR ELECTIONS TO RAJYA SABHA 2 TO, HON BLE THE CHIEF JUSTICE OF INDIA AND OTHER COMPANION JUSTICES OF THE HON BLE SUPREME COURT OF INDIA THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED MOST RESPECTFULLY SHEWETH: 1. The Petitioner herein who is the Chief Whip of Indian National Congress party in Gujarat Legislative Assembly is constrained to move this Hon ble Court under Article 32 of the Constitution seeking urgent directions against the Respondents to hold the forthcoming Rajya Sabha Elections on strictly in accordance with the provisions of the Constitution, the provisions of the Representation of People s Act 1951 and the Conduct of Election Rules 1961 and not vitiate the conduct of the said elections by relying on administrative instructions on NOTA which are ex facie in violation of the provisions of the Representation of People s Act 1951 and the Conduct of Election Rules The Secretary Gujarat Assembly, ( Respondent No.3 ) on in relation to the conduct of the Rajya

3 3. Bar & Bench ( 3 Sabha Elections in the State, issued a circular stating that the option of None of the above ( NOTA ) would be made applicable. The said Respondent No.3 as per media reports on had stated that: as per the directions issued by the Election Commission of India in 2013, NOTA option will be printed on the ballot paper 4. It is submitted that the directions of the Respondents to make applicable the option of NOTA in the ensuing Rajya Sabha Elections is ex facie illegal, contrary to the express provisions of Article 80(4) of the Constitution, the provisions of the Representation of People Act, 1951 ( the Act ) and the Conduct of Election Rules, 1961 ( the Rules ), as also the judgment of this Hon ble Court in Kuldip Nayar v. Union of India (2006)7 SCC1 5. In any event, it is submitted that the Election Commission of India ( ECI ), Respondent No.1 herein cannot by executive instructions/circulars seek to override the express provisions of the Act and the Rules. Without a corresponding amendment in the Act and Rules any purported administrative action of the Respondent No.1 to introduce NOTA is ex facie illegal, arbitrary and in fact tainted with malafides. 6. The instant Writ Petition does not call in question the ensuing Rajya Sabha elections or to seek to interrupt

4 4 obstruct or protract the said election but seeks appropriate directions for sub-serving the progress and conduct of the election in accordance with law. The instant writ petition is directed against the ex facie illegal directions of the Respondent No.1 which despite being the Constitutional watch dog 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, the provisions of the Act and the Rules. 7. The Petitioner is therefore moving this Hon ble Court under Article 32 r/w Article 14 of the Constitution interalia challenging the circular issued by Respondent No. 3 on and the other circulars dated and issued by Respondent No.1, purporting to make applicable NOTA in Rajya Sabha elections. A true translated & typed copy of the circular dated issued by Respondent No. 3 is annexed hereto and marked as ANNEXURE P-1 [Pg 25-35] True & typed copies of the circulars dated and issued by the Election Commission of India are annexed hereto and marked as ANNEXURE P-2 [Pg 36-57]

5 5 8. That the Petitioner herein is the Chief Whip of the INC in the Gujarat Legislative Assembly, having been elected from 54, Dani Limbda SC Assembly Constituency to the Thirteenth Legislative Assembly of the State of Gujarat. 9. Respondent No. 1 is the Election Commission of India. The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. Respondent No. 1 has issued the impugned circulars dated as well as directing inclusion of NOTA in the elections to the Council of States. 10. That Respondent No. 2 is the Ministry of Home Affairs, which is responsible for the Centre-State relations, including working of the constitutional provisions governing such relations, appointment of Governors, creation of new States, nominations to Rajya Sabha/Lok Sabha, Inter-State boundary disputes, over-seeing the crime situation in States, imposition of President's Rule and work relating to Crime & Criminal Tracking Network System (CCTNS) etc.

6 6 11. That Respondent No. 3, is Gujarat Vidhan Sabha and Respondent No. 4 is the Returning Officer for the Election to the Council of States in the Gujarat Legislature Secretariat. The said Respondents are responsible for the conduct of Biennial Elections to the Council of States for the 3 seats from the State of Gujarat scheduled to be held on The said Respondent has issued circular dated That the cause of action arose on , when Shri D.M. Patel, Secretary, Gujarat Assembly, was reported to have stated in the media that "as per the directions issued by the Election Commission of India in 2013, NOTA option will be printed on the ballot paper". It further arose on when Respondent No. 3 issued the impugned circular dated to make available NOTA in the ensuing Rajya Sabha Elections. This came as a surprise to the Petitioner since Rajya Sabha polls were taking place almost after 20 years in the State of Gujarat and hence such a situation had never arisen before. 13. The facts leading to the filing of the present Writ Petition are as follows:

7 7 i. That the Election Commission of India issued a Press Note on in respect of Biennial Elections to the Council of States for the States of Gujarat (3 seats), West Bengal (6 seats) and Madhya Pradesh (1 seat). A true & typed copy of the Press Note dated released by the Election Commission of India is annexed hereto and marked as ANNEXURE P-3 [Pg 58-62] ii. The said Press Note also provided the schedule for the Biennial elections, as per which, the Date of Poll was fixed on iii. The Petitioner herein was appointed as the Chief Whip of the Congress Legislature Party in the Gujarat Assembly on iv. Since Rajya Sabha polls were taking place almost after 20 years in the State, it came as a surprise to the Petitioner when the media on reported the Secretary, Gujarat Assembly, D.M. Patel to have stated that "as per the directions issued by the Election Commission of India in 2013, NOTA option will be printed on the ballot paper". A true & typed copy of the news item dated is available online at

8 8 -gujarat-elections-rajya-sabha-gujarat-amit-shahsmriti-irani/67555 is annexed hereto and marked as ANNEXURE P-4 [Pg 63-65] v. The said directions referred to by the Secretary, Gujarat Assembly, were issued by the Respondent No. 1 by way of the circulars dated and , the validity of which are impugned in the present Writ Petition along with the decision dated of the Secretary, Gujarat Assembly to print NOTA option on the ballot paper to be used in the Elections to the Rajya Sabha in the Gujarat Legislature. vi. In fact a representation was made to Respondent No. 1, on behalf of the All India Congress Committee (AICC) dated , highlighting the illegal nature of the circulars and requesting Respondent No. 1 to refrain from implementing the same to ensure free and fair election. A true & typed copy of the representation dated is annexed hereto and marked as ANNEXURE P-5 [Pg 66-85]

9 vii. Bar & Bench ( 9 Respondent No. 3 however, issued a circular dated , making available the option of NOTA in the ballot papers to be used in the Rajya Sabha Elections scheduled on In these circumstances, the Petitioner is moving this Hon ble Court under Article 32 of the Constitution beseeching this Hon ble Court to intervene and set aside the illegal and invalid executive order/instructions issued by the ECI on and , further sought to be implemented by Respondent No. 3, vide its circular dated , as ultra vires the Constitution, Statutory law governing the field and rules framed thereunder. 15. That the Petitioner has not filed any other Petition on the same subject matter or seeking similar reliefs either in this Hon ble Court or any other High Courts except this present petition. 16. That the Writ Petition has been filed without any delay or latches and there is no legal bar in entertaining the same. That the Petitioner has no other efficacious alternative remedy except to file the present Writ Petition before this Hon ble Court by invoking Article 32 of the Constitution.

10 That the Annexures are true and correct copies of their respective originals. 18. That in the circumstances mentioned hereinabove this Writ Petition is being preferred by the Petitioner inter alia on the following amongst other grounds without prejudice to each other: GROUNDS a. FOR THAT that the impugned circular being exfacie unconstitutional, invalid and illegal is liable to be interfered with and set aside. b. FOR THAT ECI vide the said Circular, on an entirely erroneous understanding of law laid down by this Hon ble Court in PUCL v. Union of India, 2013 (10) SCC 1, has directed that the none of the above ( NOTA ) option will be applicable for elections to Rajya Sabha also. c. FOR THAT the use of NOTA in indirect elections such as the Rajya Sabha is contrary to mandate of Article 80(4) of the Constitution, the provisions of the Representation of People Act, 1951 ( the Act ) and the Conduct of Election Rules, 1961 ( the Rules ), as also the

11 11 judgment of this Hon ble Court in Kuldip Nayar v. Union of India, (2006) 7 SCC 1. d. FOR THAT the judgment of this Hon ble Apex Court in PUCL v. Union of India, 2013 (10) SCC 1, regarding the use of NOTA was rendered in the context of direct elections. e. FOR THAT the judgment categorically holds that in a direct election a voter must be given an opportunity to choose NOTA button/option. That this landmark judgment is in the context of general elections is amply clear from a bare reading of the judgment itself. In Para 41 of the PUCL judgment, the general elections with ballot paper/evm is discussed. In Para 53, this Hon ble Court observes as follows: Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. f. FOR THAT the Hon ble Court in para 63 directs the Election Commission to provide necessary provisions in the ballot papers/evms for providing the NOTA button/option: 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 12 g. FOR THAT the judgment of this Hon ble Court was concerned with the general elections and is not in the context of indirect elections like the Rajya Sabha Elections where there is open voting with the system of proportional representation by means of the single transferable vote [see Section 80(4)]. h. FOR THAT the use of NOTA completely militates against the express provisions of Article 80(4), the provisions of the Representation of People Act, 1951, and the Conduct of Election Rules, i. FOR THAT Article 80(4) provides for indirect election to the Rajya Sabha by the Members of the Legislative Assembly of the State in accordance with the system of proportional representation by single transferable vote. Article 80(4) reads as follows:- 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. (emphasis suppled) j. FOR THAT the system of NOTA is entirely incompatible with the system of proportional representation envisaged by the Constitution.

13 13 k. FOR THAT Section 59 of the Representation of People Act, 1951, provides for the manner of election and reads as follows: Bar & Bench ( 59. Manner of voting at elections. (i) At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed, and, save as expressly provided by this Act, no votes shall be received by proxy: Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. l. FOR THAT the words prescribed means prescribed by the Rules. The Conduct of Election Rules, 1961 has been enacted pursuant to the power of the Central Government under Section 169 of the Act. In this regard, Section 169(1) reads as follows: Power to make rules. (1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. m. FOR THAT Rule 30(2) of Conduct of Election Rules, 1961, states that names of the candidates shall be arranged on the ballot paper in the same order in which they appear in the list of contesting candidates. n. FOR THAT Part VI of the Rules makes special provisions for voting at election by Assembly Members. Rule 70 (ii) provides that in lieu of Rule 37 to 40, Rules 37 (A) to 40(A) shall apply. Rule 37 A(2) provides that:

14 14 an elector in giving his vote shall place on his ballot paper figure 1 in the space opposite the name of the candidate(emphasis supplied) for whom he wishes to vote in the first instance and under Rule 37A(2)(b) may in addition place on his ballot paper figure 2 and figures 2 and 3 or the figures 2 3 and 4 and so in the space opposite the names of other candidates in the order of his preference o. FOR THAT there is a marked distinction between the language in Section 37 A(2)(a) and 37A(2)(b). It is mandatory to give the first preference to a candidate while it is discretionary to give the second or third preference. This Rule is not amended. If the option is given to give NOTA, it will defeat the mandate of the delegated legislation. It is trite that there can be no administrative instruction or circular contrary to an express provision in any Act or Rule. If NOTA is permitted it will also defeat the purport and the intendment of Rules contained in Rule 76, 83 read with the Schedule. p. FOR THAT Rule 71(4) defines first preference to mean following:- "first preference" means the figure 1 set opposite the name of a candidate; "second preference" means the figure 2 set opposite the name of a candidate; "third preference" means the figure 3 set opposite the name of a candidate, and so on; q. FOR THAT Rule 71(5) defines original vote which reads as follows:-

15 15 "original vote", in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate; r. FOR THAT Rule 71(6) defines surplus and reads as follows:- "surplus" means the number by which the value of the votes, original and transferred, of any candidate exceeds the quota; s. FOR THAT Rule 71(7) defines transferred vote to mean the following: Bar & Bench ( "transferred vote", in relation to any candidate, means a vote the value or the part of the value of which is credited to such candidate and which is derived from a ballot paper on which a second or a subsequent preference is recorded for such candidate t. FOR THAT Rule 76 is extremely important and describes the ascertainment of quota : Ascertainment of quota. 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 as follows: (a) add the values credited to all the candidates under clause (c) of rule 74; (b) divide the total by a number which exceeds by 1 the number of vacancies to be filled; and (c) add 1 to the quotient ignoring the remainder, if any, and the resulting number is the quota u. FOR THAT similarly Rules 77 to 81 describes the manner of counting of votes, transfer of surplus and filling up of last vacancy in the system of proportional representation.

16 16 v. FOR THAT in A.U. Singh Deo v. Ranga Nath Mishra, (2002) 1 SCC 499, a three Judge Bench of the Hon ble Supreme Court while explaining the procedure of proportional representation by means of single transferable vote summarized the procedure envisaged by Conduct of Election Rules The use of NOTA militates against the aforesaid procedure. w. FOR THAT the system of NOTA makes the very system of proportional representation by means of single transferable vote nugatory and otiose and cannot be made applicable in Rajya Sabha Elections. x. FOR THAT the use of NOTA in indirect elections is in direct conflict with and militates against the system of proportional representation by means of single transferable vote envisaged by the Constitution, the Representation of People s Act and the Conduct of Election Rules, y. FOR THAT the use of NOTA cannot be sanctioned by way of the impugned circularas it militates against the provisions of Article 80(4), the provisions of Representation of People Act, 1951, and the Conduct of Election Rules, 1961.

17 17 z. FOR THAT the use of NOTA cannot be made applicable without the necessary amendments in the Act and Rules and any use of NOTA would directly violate Rule 37 A(2) in particular and other Rules mentioned herein above. aa. FOR THAT the PUCL judgment was only concerned with direct elections and the implementation of NOTA option in the General Elections. The ratio thereof cannot apply to indirect elections which is not based on universal adult suffrage but is on the basis of a collegium of elected representatives casting open ballot by a system of proportional representation by means of single transferable vote. bb. FOR THAT it is no longer res integra that in matters of election to the Rajya Sabha, MLAs are duty bound to support the candidate put up by the political party to which they are affiliated. In Kuldip Nayar v. Union of India, (2006) 7 SCC 1; a constitution bench of the Supreme Court (5 judges) categorically observed that the declarations under Form 2-B read with 2-C binds the MLA s to vote for the candidate set up by the political party to which they are affiliated. In this regard, the Court observed as follows: This declaration binds the elected legislators in the matter of allegiance to the political party in all matters including, and we find the Attorney

18 18 General is not wrong in so submitting, the support of the party to a particular candidate in election to the Council of States. cc. FOR THAT in Kuldip Nayar (Supra), this Hon ble Court further emphasized the rationale behind proportional representation and the need for maintaining the sanctity of Members of the political party by ensuring party discipline. It was categorically held that the political parties are sine qua non of the Parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect elections. In this regard, Para 451 and 452 reads as follows: 451. It cannot be forgotten that the existence of political parties is an essential feature of our parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting to cross-voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant legislators. Political parties are the sine qua non of parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect elections Parliamentary democracy and multi-party system are an inherent part of the basic structure of the Indian Constitution. It is the political parties that set up candidates at an election who are predominantly elected as Members of the State Legislatures. The context in which general elections are held, secrecy of the vote is necessary in order to maintain the purity of the electoral system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted. But here we are concerned with a voter who is elected on the ticket of a political party. In this view, the context entirely changes.

19 19 dd. FOR THAT similarly, in para 461, while holding the validity of open ballot, the Hon ble Court categorically observed that owing to the impugned amendment, a voter has to disclose the way he has cast the vote to an authorized representative of his Party. ee. FOR THAT in para 462, the Hon ble Court deprecated the practice of cross-voting in the Rajya Sabha elections and held that it is the duty of Parliament to take cognizance of the misbehavior and misconduct and legislate remedial measures for the same. Breach of Discipline of political parties for collateral and corrupt considerations removes the faith of the people in a multi-party democracy. ff. FOR THAT in view of the categorical observations of the Hon ble Apex Court in Kuldip Nayar (supra) rendered in the context of Rajya Sabha elections, no directions could have been given by the ECI to introduce NOTA which can have the effect of not only upsetting and destroying the nature of proportional representation by means of single transferable vote but also will have the effect of breaching the party discipline and the importance of political parties which the Court has held as the basic feature of the Constitution. gg. For that the impugned circular is brazenly opposed to the letter and spirit of the Constitution as is reflected in Article 80(4).

20 20 hh. For that the Respondent No.1 despite being a Constitutional watch dog 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, the provisions of the Act and the Rules by seeking to rely on administrative instructions over the express provisions of law. ii. For that without a corresponding amendment in the Act and Rules, any purported administrative action of the Respondent No.1 to introduce NOTA is ex facie illegal, arbitrary and in fact tainted with malafides jj. FOR THAT the Petitioner craves leave of this Hon ble Court to amend/alter its grounds at appropriate stage, as and when required. PRAYER In these facts and circumstances, it is most respectfully prayed that this Hon ble Court may be pleased to:- a. Issue an appropriate writ, order or direction quashing the circular dated of Respondent No. 3 to include the NOTA option in the ballot papers to be used in the elections scheduled on , for the 3 seats of the Rajya Sabha from the Gujarat Legislature; and b. Issue a writ, order or direction quashing and declaring as void abinitio and non-est the circulars dated and issued by Respondent No. 1

21 21 in respect of making available the option of NOTA in elections to the Rajya Sabha; and c. Declare that the circulars dated , and are in conflict/violation of the provisions of the Representation of People Act, 1951 and the Rules framed thereunder and as such are non est in law; and d. Pass such other order(s) or direction(s) as it deems fit in the facts of the present case and in the interests of justice. AND FOR THIS ACT OF KINDESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY DRAWN BY: MR. DEVADATT KAMAT, (ADV) MR. JAVEDUR RAHMAN, (ADV) SETTLED BY: MR. KAPIL SIBAL, SENIOR ADVOCATE FILED BY PLACE: NEW DELHI DRAWN ON: FILED ON: MR. FARRUKH RASHEED ADVOCATE FOR THE PETITIONER