Monday, Dec 05, 2022

Rajya Sabha poll before Kerala Assembly results: EC powers, HC ruling

The Election Commission, which had earlier paused the election, has now said the vote would take place on April 30. Counting of votes for the recent Kerala Assembly elections will take place on May 2.

Gandhi statue at Parliament (Express Photo/File)

The Kerala High Court has directed the Election Commission (EC) to hold elections to three Rajya Sabha seats from the state before the term of the current Assembly ends. The EC, which had earlier paused the election, has now said the vote would take place on April 30. Counting of votes for the recent Assembly elections will take place on May 2.

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How did this reach the High Court?

On March 17, the EC announced the election schedule for filling up three Rajya Sabha seats that fall vacant on April 21, with the retirement of Vayalar Ravi (Congress), K K Ragesh (CPM) and Abdul Vahab (UML). The election was to be notified on March 24, with voting and the result scheduled on April 12.

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On March 24, instead of notifying the election, the EC issued a press release announcing it was being kept in abeyance. This was to examine a reference received from the Law Ministry. “Pending examination of the reference, the Commission has decided to keep the aforementioned proposed notification and schedule in abeyance till further orders,” the release said. At this point, the EC did not elaborate on the contents of the reference.

Kerala Legislative Assembly Secretary S Sharma, a CPM MLA, challenged the EC’s decision in the High Court.

What did the Ministry’s reference contain?

On March 23, the Law Ministry wrote to the EC suggesting that it wait until May 2, when the new Assembly will be in place. The government argued that since voting in Kerala had ended on April 6, holding elections to the three Rajya Sabha seats on April 12 (before the announcement of results on May 2) “may not reflect the will of the people”.

So, was the EC convinced by this argument?

The EC informed the court that it had kept the elections in abeyance since the Ministry had raised a “proprietary” issue and it was felt legal opinion should be sought. Although the EC didn’t name the lawyer whose legal opinion was sought, it said the expert agreed with the Ministry. The expert had opined that it would be “constitutionally just and proper” that the new Assembly, voting for which ended before the expiry of the term of the three Rajya Sabha members, should elect the three new MPs.


However, the EC eventually decided that it would announce and notify the fresh schedule before the expiry of the term of the three MPs. “The Commission has stated that it is not concerned with which assembly votes for the election as its constitutional duty is to conduct the elections at the earliest and that the date of expiration of the current assembly though may be a relevant factor it cannot be the sole basis for determining the schedule of which ultimately affect the functioning of the Upper House,” the court order states.

What was the petitioner’s argument?

The petitioner had argued that since the 14th Legislative Assembly of Kerala is still in place, the EC has no justifiable reason for putting the elections on hold. Moreover, the petitioner told the court that the Commission is “bound to conduct the election before the expiration of the term of the three outgoing members” or else “there would be a shortage of three representatives for the State in the Council of States”.

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On what legal principles did the court base its order?

Referring to provisions in the Representation of People’s Act, read with provisions in Article 80 (4) of the Constitution, the court said: “… the intention is not to keep the seats unfilled but to complete the process of election before the retirement of the members, so as to have the full strength of members in the Upper House to represent the State. A different view is warranted only when there is any law-and-order situation or any practical impossibility. The power to amend or extend the schedule is not to be invoked normally. Such circumstances are not available in the present case.”

The court ruled: “… the Commission, which is fully aware of its duty conferred under Article 324 of the Constitution of India in its true spirit, has therefore to expedite the proceedings so as to see that the representation in the Upper House from Kerala is always in full swing and to avoid situations as pointed out by the petitioners, where the nomination is made by the existing Assembly and voting by another Assembly. It is seen that at least after the EC arrived at the decision that it is its duty to see that the vacancies are filled up at the earliest, the Commission is yet to take any steps for the same.’’

Given the EC’s powers to decide the calendar of elections, where does the High Court come in?

Under Article 324 of the Constitution, deciding the calendar of an election is the exclusive domain of the EC and can’t be subject to any law framed by the Parliament. Once a schedule is announced, courts do not have the jurisdiction to make changes to it. However, the EC’s powers are not unbridled. In 1993, the Supreme Court had ruled that EC’s power is “judicially reviewable. ” and the review can be done depending on the facts and circumstances of each case.

First published on: 14-04-2021 at 04:25:07 am
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