New Delhi: In a setback to the Congress party, the Supreme Court on Thursday refused to stay the exercise of NOTA (none of the above) option in the upcoming Gujarat Rajya Sabha elections scheduled to take place on 8 August.

A bench headed by justice Dipak Misra issued notice to the Election Commission (EC) and sought its response within two weeks. Misra further held that the issue would be heard as a constitutional question—whether NOTA would apply to election of council of states.

Kapil Sibal, counsel for Gujarat Congress, urged the court to stay the elections and said, “If the elections aren’t stayed, it will be a recipe for corruption."

The court also raised the question of why it had not been challenged despite the notification of the EC being in operation since 2014.

“The Supreme Court ruling was restricted to direct elections, while this is a case of indirect election on proportional representative by means of single transferable vote. Both are entirely different," submitted Sibal.

He added that NOTA has not been exercised in a single election till now. However, according to data by EC since January 2014, NOTA has been used in a total of 25 such seats where a contest took place in an RS election.

The court was hearing a plea by the Gujarat Congress against using the option of NOTA in the RS polls in Gujarat. It was sought to be done away with as it was allegedly in violation of the provisions of the Representation of the People Act, 1951 and the Conduct of Election Rules, 1961.

The matter was sought to be given an urgent hearing on the grounds that there was no statutory provision for the NOTA option in the ballot paper for these elections.

“The Supreme Court’s ruling was confined to general elections, where the system of voting is different as opposed to the single transferable vote under Rajya Sabha elections. NOTA was not envisaged for Rajya Sabha elections," said senior advocate Jayant Bhushan.

The NOTA option for Rajya Sabha polls was introduced in 2014 but has become controversial in Gujarat because it is for the first time since 1996 that a contest will take place for the polls. Congress has key stakes in the polls as it is looking at the re-election of senior party leader Ahmed Patel in the Rajya Sabha. Both the Congress and the Bharatiya Janata Party have approached EC over the issue.

The EC has maintained that it is only following the apex court order of the apex court in 2013 which said that the NOTA option should be provided on ballot papers and electronic voting machines.

The matter will be heard next on 18 September.

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