The Election Commssion has told the Supreme Court that a plea by a Gujarat Congress leader challenging the use of None of the Above (NOTA) option in the Rajya Sabha polls in the state was an "abuse" of the legal process and was "not maintainable".
Seeking dismissal of the plea filed by Congress's chief whip in Gujarat Assembly, the EC said that from January 2014, biennial elections to the Rajya Sabha have been held in many states and the NOTA option has been its part since then.
It also referred to the previous judgements delivered by the apex court and said every voter has the right to vote or the right not to vote.
"It is submitted at the outset that the present writ petition is not maintainable before this court as the contents of the said writ petition do not disclose the violation of any fundamental right of the petitioner or any other person for that matter," the EC said in its affidavit filed in the court.
The poll panel also said "the present writ petition ought to be dismissed by this court at the threshold itself as the same is an abuse of the process of law and a waste of precious judicial time of this court."
The top court had on August 3 agreed to examine the constitutional validity of the NOTA provision in Rajya Sabha polls saying the issue needed to be debated.
Congress chief whip in Gujarat Assembly Shailesh Manubhai Parmar had filed the plea in the apex court against the use of NOTA option in the Rajya Sabha poll in the state in which the party had fielded senior leader Ahmed Patel as a candidate.
Patel, a seven-time MP from Gujarat and political advisor of Congress president Sonia Gandhi, had won the Rajya Sabha seat last month in a nail-biting finish.
"From January 2014, biennial elections to Rajya Sabha have been held in 2014, 2015, 2016 and 2017 covering all states and 25 bye-elections to Rajya Sabha have also been held. It is pertinent to point out herein that the NOTA option was a part of every Rajya Sabha elections held since 2014," the EC affidavit said.
It referred to the constitutional provisions and said that any election to Rajya Sabha can only be called into question by way of an election petition only.
"The provisions of NOTA in the ballot papers for the elections to the council of states has been made by the EC to effectuate this right of electors guranteed to them under the said section 79(A) of the Representation of the People Act, 1951," it said.
The case was today listed for hearing before a bench headed by Chief Justice Dipak Misra. The matter has been listed for hearing after four weeks.
On August 3, the top court had refused to stay the EC notification allowing NOTA option in the ballot paper for the Rajya Sabha polls in Gujarat.
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