SHAILESH MANUBHAI PARMAR versus ELECTION COMMISSION OF INDIA THROUGH THE CHIEF ELECTION COMMISSIONER & ORS.

Citation: [2018] 10 S.C.R. 76 · Decided: 21-08-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 10 S.C.R.
SHAILESH MANUBHAI PARMAR
v.
ELECTION COMMISSION OF INDIA THROUGH
THE CHIEF ELECTION COMMISSIONER & ORS.
(Writ Petition (Civil) No.631 of 2017)
AUGUST 21, 2018
[DIPAK MISRA, CJI,  A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India:
Art. 80(4) – Election for Council of States – Applicability of
the option “None of the Above” (NOTA) – Election Commission
introducing NOTA to Council of States elections – Challenged
u/Art. 32 of the Constitution – Held: NOTA was introduced  for
direct elections i.e. of Parliament and State Legislative Assemblies
– There is distinction between direct election and indirect election –
Option of NOTA to Council of States election, which is indirect
election, would not only undermine the purity of democracy but
also serve the satan of defection and corruption.
Allowing the Writ Petition, the Court
HELD: 1. Election Commission has treated the
pronouncement in *PUCL’s case as 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.[Para 18] [92-D-F]
Kuldip Nayar and Others v. Union of India and Others
(2006) 7  SCC  1 :   [2006]  5  Suppl.  SCR 1 – followed.
   [2018] 10 S.C.R. 76
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2.  In election for Council of States, 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. In a voting
for members of the Council of States, the nature of voting by an
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. [Para 19] [93-E-G]
Ravi S. Naik v. Union of India and Others (1994) 2
Suppl. SCC 641 : [1994] 1 SCR 754 – relied on.
Kihoto Hollohan v. Zachillhu and Others (1992) 2 Suppl.
SCC 651 : [1992] 1 SCR 686  – referred to.
3. The introduction of the Tenth Schedule in the
Constitution, by the Constitution (Fifty-Second Amendment) Act,
1985 was introduced to eradicate the evil of political defection.
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.
[Para 22] [95-F; 96-B]
4.  In a democracy, the purity of election is categorically
imperative. The democratic body polity stipulates that the
quintessential idea of democracy is abhorrent to corruption and
laws emphasize on prevalence of genuine orderliness, positive
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
SHAILESH MANUBHAI PARMAR v. ELECTION
COMMISSION OF INDIA
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[2018] 10 S.C.R.
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.[Para 23] [96-B-D]
Manoj Narula v. Union of India (2014) 9 SCC 1 :
[2014] 9 SCR 965 – relied on.
5.   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 ha

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