Should NOTA (none of the above) be an option in a State Assembly vote for the Rajya Sabha, as it is for the electorate in direct elections? Following the Gujarat Assembly secretary’s statement that the “NOTA” option will be available on the ballot paper in the Rajya Sabha election next week, both the Congress and the Bharatiya Janata Party have sought to convince the Supreme Court and the Election Commission that MLAs should not have this option. The Supreme Court refused to stay the process to allow NOTA, saying that the provision has been in place since April 2014 after a direction by the EC. It is important to note that open ballots are used in the Rajya Sabha elections. These elections follow a proportional representation system based on the single transferable vote, unlike the general elections to the Lok Sabha, which are conducted with secret ballots (or votes) and based on the first-past-the-post principle. The idea behind the use of NOTA is to allow the voter to register a “protest” vote if none of the candidates is acceptable to her for whatever reason. While NOTA votes are tallied, the candidate with the highest number of votes polled is declared elected irrespective of the NOTA total. In the case of the Rajya Sabha elections, the vote allows for the preferential ordering of candidates. If an MLA chooses NOTA, the vote is rendered ineffective.
In principle, 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. The party high command can issue a whip for a Rajya Sabha candidate, but anti-defection law provisions do not apply, and a defiant MLA is not disqualified from membership of the House. The Supreme Court has in the past held that open ballot votes in Rajya Sabha elections against the whip will not lead to disqualification as the Tenth Schedule, pertaining to anti-defection provisions, has a different purpose. The Congress party’s protest on the introduction of NOTA draws from anxiety about mopping up sufficient votes to have its nominee Ahmed Patel elected to the Rajya Sabha. Six of its MLAs have already resigned, and there is concern that some of the remaining MLAs may not heed the party whip. Overall, both the Congress and the BJP probably have longer-term worries about keeping control of their flock in Rajya Sabha elections. But it is not as if MLAs have previously fallen in line meekly on such occasions. Therefore, instead of struggling against the democratisation of indirect elections, through reforms such as the NOTA option, parties would be better off relearning the art of floor management.