Bound by the law

The Election Commission is pained at the observations of Kuldip Nayar in 8216;Strangers in the House8217; IE, July 5 that the attitude o...

The Election Commission is pained at the observations of Kuldip Nayar in 8216;Strangers in the House8217; IE, July 5 that the attitude of the Commission is 8216;8216;intriguing8217;8217; and that it is 8216;8216;the most to blame8217;8217; for conducting elections to Rajya Sabha in violation of the Constitution.

It is the sacred duty and responsibility of the EC to conduct elections to the offices of the president and vice-president of India, both Houses of Parliament and state legislatures. The Supreme Court has unambiguously held in the A.C. Jose Vs Sivan Pillai and Others case that 8216;8216;where there is an Act and express rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules8217;8217;.

In the present case, Parliament has amended the Representation of the People Act 1951 in 2003 to provide that a a candidate for an election to the Rajya Sabha should be a registered elector in any parliamentary constituency in India; and b the voting in the Rajya Sabha elections shall not be secret and the agents of the political parties shall be entitled to see how the members of the legislative assemblies belonging to their parties have voted at the election. The Election Commission is bound to conduct elections to the Rajya Sabha in accordance with these amended provisions of law made by Parliament under Article 327 of the Constitution.

Kuldip Nayar has challenged these amendments to the law before the Supreme Court and the apex court has issued a notice to the government. But the Supreme Court has not issued any stay order or any other prohibitory injunction despite the fact that Nayar has already brought to its notice that several elections were due to be held to the Rajya Sabha.

Further, the Supreme Court in its interim order of June 9, 2004 also made it clear that election to the Council of States is subject to the result of writ petitions or orders that may be passed at the time of the final disposal of these writ petitions. Indeed, the Commission would have violated the Constitution if it had acceded to the request of the author not to conduct the election, and not, as alleged by the author, when it went ahead with the conduct of the elections.

The above comment was received from the office of A.K. Majumdar, Secretary, Election Commission of India, New Delhi