The Supreme Court on Monday questioned the Election Commission's notification allowing none of the above (NOTA) option in the ballot papers for the Rajya Sabha polls saying it was meant to be exercised by individual voters in direct polls.
A bench headed by Chief Justice Dipak Misra also reserved its verdict on a plea of Shailesh Manubhai Parmar, who was the Congress' chief whip in the Gujarat Assembly during the last Rajya Sabha polls, in which the party had fielded sitting MP Ahmed Patel.
Mr Parmar had challenged the poll panel's notification allowing NOTA option in ballot papers.
"Why should a Constitutional court be party to an unconstitutional act... If a person does not vote, he could be expelled by the party. But by introducing NOTA, you (EC) are legitimising the act of not voting," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.
It said the NOTA option was meant for individual voters in direct elections and for polls for Rajya Sabha and MLC seats.
The idea behind having an open ballot voting system in polls for the Rajya Sabha and the Legislative Councils was to restrain cross-voting due to corrupt practices, it said.
The bench also said that a lawmaker has to vote according to the directions of his or her party in such polls where preferences have to be disclosed on party lines and the voter cannot say that he would give first preference to a candidate and then give NOTA.
"Whether to vote and not to vote falls under the domain of the member of the house and the Election Commission cannot issue notification giving NOTA option," it said.
"How can the Election Commission can enter into this arena," the bench asked, while taking note of the submissions of Attorney General K K Venugopal, who opposed the poll panel's notification, that NOTA should not be made applicable in Rajya Sabha and MLC elections.
Mr Venugopal said a party enters into some kind of "contract" with other party which was beneficial to them and asked the MLAs to vote according to its decisions.
"Fundamental right of freedom of speech and expressions can be curtailed on the ground of morality," he said, adding that MLAs are bound by the decisions of their respective parties.
The poll panel opposed the plea against NOTA provision and said that it was an "abuse" of the legal process.
The bench asked the poll panel as to why it was venturing into the "complicated" area.
"Heard Abhishek Manu Singvhi, senior counsel for the petitioner, K K Venugopal, Attorney General, appearing for the Union of India and Amit Sharma, for the Election Commission. Arguments concluded. Judgment reserved," the bench said.
Earlier, the court had refused to stay the Election Commission's notification allowing NOTA option in the ballot paper for the Rajya Sabha polls in Gujarat from where Patel was also contesting.
It had, however, agreed to examine the constitutional validity of the NOTA provision in the Rajya Sabha polls, saying that the issue needed to be debated.
It had asked the Attorney General to assist the court during the hearing.
The Gujarat Congress leader had alleged that if the NOTA provision was allowed in the Rajya Sabha polls, it would encourage "horse-trading and corruption".
The poll panel had said that NOTA was first introduced in 2014 following a top court verdict a year earlier and they (Congress) did not have any objection in subsequent polls as it suited them.