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Posted at: Sep 13, 2017, 10:38 PM; last updated: Sep 13, 2017, 10:38 PM (IST)

Law does not require MPs, MLAs to vote on party line in RS polls, EC tells SC

Law does not require MPs, MLAs to vote on party line in RS polls, EC tells SC
File photo of the Supreme Court

Satya Prakash

Tribune News Service

New Delhi, September 13

MPs and MLAs were not bound by law to vote in the manner desired by the party they belonged to in Rajya Sabha elections, the Election Commission has told the Supreme Court, defending use of NOTA option for polls to the Upper House.

“There is no mandate under the law that an elector (MP or MLA) must vote in the manner decided by the political party to which he belongs and that he has no right to not vote for any candidate if he so wishes under Section 79(d) of the Representation of the People Act, 1951, as no disqualification is mandated for cross-voting thereon in any election to Council of States”, the Election Commission said in an affidavit filed in the court.

The affidavit has been filed in response to a petition by the Gujarat Congress challenging the introduction of NOTA in the recently held RS polls in which Sonia Gandhi’s political secretary Ahmad Patel won in a keen contest.

There was no need for secrecy because the law allowed open voting and there was no disqualification for cross-voting in any election to council of states, the Commission said, adding this did not take away an elector’s right not to vote.

It said the petitioner nowhere indicated how NOTA would be detrimental or cause prejudice to a political party, the Commission said.

It sought to emphasise the fact that 2017 was not the first time it gave option of NOTA in Rajya Sabha elections. This option had been available in every election since 2014.

The Commission referred to two SC orders to state that every voter had right to vote and not to vote. The 2013 judgment that led to introduction of NOTA in elections never intended to restrict it to direct elections only.

Election law makes no distinction between direct and indirect election and, therefore, NOTA applies to all elections, it pointed out.

“…the provision of NOTA in the ballot papers is to effectuate the right to the voters guaranteed under the law,” EC affidavit read.

In the Rajya Sabha polls, the MLAs have to show their ballot paper to an authorised party agent before putting it in the ballot box. If a voter (MLA) defies the party directive and votes for someone else or uses NOTA option, he cannot be disqualified as a legislator.

But the party is 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, say EC rules.

Gujarat Congress had challenged NOTA before the top court ahead of the RS polls in Gujarat. The SC had refused to stay the elections

“Why are you so late in raising the question? The EC issued the NOTA notification in January 2014,” a Bench headed by CJI Dipak Misra had told senior counsel Kapil Sibal who contended that NOTA would lead to corruption as there were four candidates for three Rajya Sabha seats in Gujarat.

“When the notification was issued you didn’t act upon…when it suited you, you didn’t come. You come here on the eve of election,” the Bench had told Sibal, who represented the Gujarat Congress.

“The notification of the EC is for Gujarat, West Bengal and Madhya Pradesh. The election should be taken in the widest sense. It has been already notified. Any interference will totally disrupt the polls,” it had said.

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