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2. It is asserted that the Election Commission of India had issued directions to the Chief Electoral Officers of all the States and the Union Territories (except Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu and Lakshadweep) directing that the option of NOTA could be applicable for elections in the Rajya Sabha and the said option shall be printed on the ballot paper in the language or languages in which the ballot paper is printed as per the directions issued by the Election Commission in pursuance of sub-rule (1) of Rule 22 and sub-rule (1) of Rule 30 read with Rule 70 of the Conduct of Election Rules, 1961 (for short, ‗the Rules‘). Reference has been made to the communication dated 12th November, 2015 by the 1st respondent to the Chief Electoral Officers of all the States giving further directions regarding the manner of voting in preferential system but we are only concerned with the applicability of NOTA to the Rajya Sabha elections. It is contended in the petition that the circulars issued by the Election Commission of India introducing NOTA to the elections in respect of members of the Rajya Sabha are contrary to the mandate of Article 80(4) of the Constitution of India and the decision of this Court in People’s Union for Civil Liberties and another v. Union of India and another (PUCL) 1 . It does not lend any support to the understanding of the Election Commission for introducing such an option in respect of Rajya Sabha elections. It is averred that Section 59 of the Representation of the People Act, 1951 (for brevity, ‗the 1951 Act‘) provides for the manner of voting at elections and Section 169 empowers the Central Government, after consulting the Election Commission, to make rules for carrying out the purposes of this Act. Reference has been made to Part VI of the Rules which makes special provisions for voting at elections by Assembly members and Rule 70 provides that Rules 37(8) to 40A shall apply. Relying on the interpretation of the said Rules, it is urged that the scheme of the Rules referred to above and Rules 71 to 76 do not remotely conceive of NOTA but the same has been brought in by issuance of circular by the Election Commission and, hence, the same is unconstitutional.

3. A counter affidavit has been filed by the 1st respondent contending, inter alia, that the constitutional courts do not interdict in the election process and challenge can only be made after the election is over by filing an election petition before the (2013) 10 SCC 1 appropriate court; that as per the pronouncement in PUCL‘s case, there is no distinction between direct and indirect elections and, hence, the provision of NOTA in the ballot paper of the elections has been made applicable by the Election Commission to Rajya Sabha to effectuate the right of electors guaranteed to them under Section 79A of the Act; that though there is no need for secrecy in Rajya Sahba elections because the law makes it open voting, yet that does not take away the right of the elector not to vote by expressing the option of NOTA; that even assuming the position that the judgment in PUCL‘s case does not indicate that this Court ever intended to apply the option of NOTA to Rajya Sabha elections, yet the Election Commission has issued letter dated 24th January, 2014 and further reiterated by letter dated 12th November, 2015 that the option of NOTA would be applicable to elections in Rajya Sabha; and that elections had already been held by applying the said option and, therefore, there is no justification to challenge the said directions at a belated stage. Be it noted, the first two points were advanced as preliminary objections and all the other grounds raised pertained to the validity of the circular issued by the 1st respondent.

23. In a democracy, the purity of election is categorically imperative. The democratic body polity, as has been held in Manoj Narula v. Union of India 10 , stipulates that the quintessential idea of democracy is abhorrent to corruption and laws emphasize on prevalence of genuine orderliness, positive (2014) 9 SCC 1 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 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. 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 has a different connotation. It further needs to be stated that a candidate after being elected becomes a representative of the State and does not represent a particular constituency. The cumulative effect of all these aspects clearly conveys that the introduction of NOTA to the election process for electing members of the Council of States will be an anathema to the fundamental criterion of democracy which is a basic feature of the Constitution. It can be stated without any fear of contradiction that the provisions for introduction of NOTA as conceived by the Election Commission, the first respondent herein, on the basis of the PUCL judgment is absolutely erroneous, for the said judgment does not say so. We are disposed to think that the decision could not have also said so having regard to the constitutional provisions contained in Article 80 and the stipulations provided under the Tenth Schedule to the Constitution. The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the Tenth Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection. It is a well settled principle that what cannot be done directly, cannot be done indirectly. To elaborate, if NOTA is allowed in the election of the members to the Council of States, the prohibited aspect of defection would indirectly usher in with immense vigour.

27. It can be said without a speck of doubt that the decision taken by the Election Commission as regards the introduction of NOTA in the election of the members to the Council of States also runs counter to what has been stated hereinabove. NOTA will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder. It has to be remembered that democracy garners its strength from the citizenry trust which is sustained only on the foundational pillars of purity, integrity, probity and rectitude and such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces. The introduction of NOTA in indirect elections may on a first glance tempt the intellect but on a keen scrutiny, it falls to the ground, for it completely ignores the role of an elector in such an election and fully destroys the democratic value. It may be stated with profit that the idea may look attractive but its practical application defeats the fairness ingrained in an indirect election. More so where the elector‘s vote has value and the value of the vote is transferrable. It is an abstraction which does not withstand the scrutiny of, to borrow an expression from Krishna Iyer, J., the ―cosmos of concreteness‖. We may immediately add that the option of NOTA may serve as an elixir in direct elections but in respect of the election to the Council of States which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption.