SC cuts full-stop, puts question mark

But then the bench comprising Justice K G Balakrishnan and Justice P V Reddi ruled that the Rajya Sabha election held under a revised schedule would be 8216;8216;subject to8217;8217; the court8217;s final decision on a petition challenging the amendments made last year dispensing with the domicile requirement and secret ballot.

The decision to subject the current election to its future verdict8212;or to apply its judgment retrospectively8212;creates a fresh uncertainty for all the candidates. If the court eventually strikes down the open ballot provision, then every one of the 65 members elected to the Rajya Sabha will find himself ejected for no fault of his or hers.

Thus, the EC will for the first time be holding an election with the rider attached that it is subject to the outcome of a petition pending before the Supreme Court.

Senior advocate Fali Nariman, who is himself a Rajya Sabha member, had proposed such a condition as an interim measure. On his suggestion, the court directed that, despite the 2003 amendments, the EC should revert to the earlier version of the nomination form which requires each candidate to disclose the state in which he 8216;8216;ordinarily resides.8217;8217;

So, if the court restores the domicile requirement, it will not be limited to elections held in future. It will cover even the current election and therefore all those who win now from outside their states will forfeit their seats.

But what will happen if the court, alternatively, strikes down the open ballot system? Neither Nariman nor the court seems to have considered that in such a scenario, all the 65 winners in the current election will be thrown out of their seats.

On the stay order passed on June 4, the court admitted that as the notification of the election had been issued the same morning, it had no jurisdiction to interfere in the matter.

8216;8216;After considering the broad arguments, we are of the view that the interim stay on the Rajya Sabha elections should not continue. As the notification was issued on June 4 signalling the commencement of the election process, the stay should be vacated,8217;8217; the bench said.

The apex court agreed with the Centre8217;s counsel, senior advocate Gopal Subramanium, and the EC8217;s counsel, S Muralidhar, that the stay order passed by another bench, which was headed by Justice Ruma Pal, infringed on Article 329b of the Constitution which barred any judicial review from the notification of the election to the declaration of results.

Since the stay order had disrupted the election process set in motion on June 4, the court today authorised the EC to issue a revised schedule for the Rajya Sabha poll.