The Kerala High Court on Monday directed the Election Commission of India to hold elections to three Rajya Sabha seats from Kerala during the term of the present assembly.
A single bench of Justice PV Asha directed the elections to the three seats, which are falling vacant on April 21, to be held before May 2, the date of results of the recently held assembly elections.
The Court passed the order allowing two petitions filed by the Secretary of the Kerala Legislative Assembly and CPIM leader S Sharma, challenging the decision of the ECI to defer the elections which were originally proposed on April 12.
The bench held that the legislative intent was that the election process to the Rajya Sabha seats must be completed before the retirement of the incumbent members.
What is envisaged under Section 12 is to fill up the vacancies as soon as the incumbents retire and for that purpose election has to be completed by the date of retirement, the Court held.
"It is true that it is completely within the purview of the Commission to fix the schedule; but th epostponement of election is not envisaged either in the Constitution or in the rules, in the absence of good and sufficient reasons".
The Court observed that the Election Commission of India, which is an independent body as per Article 324, cannot be expected to be influenced by a reference from the Union Ministry.
"The fact that it is upto the Commission to fix the schedule of election would not mean that the Commission can fix any date", the Court said. The Court also noted that if the stand of the Election Commission that it need only notify the elections before the date of retirement is accepted, it will lead to an anomalous situation whereby nomination is made by the existing assembly and the voting is done by another assembly.
"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 the State of Kerala is always in full swing and to avoid situations as pointed out by the learned Senior Counsel for the petitioners, where the nomination is made by the existing assembly and voting by another assembly", the Court said in its 37-page judgment
"When the Commission itself has admitted that it is duty bound to conduct the election and complete the process at the earliest, it is only appropriate that it takes expeditious steps without further delay to complete the election before another electorate comes into existence on 02.05.2021. Ordered accordingly", Justice Asha said in conclusion of the judgment.
The High Court said that Supreme Court precedents show that the process of election has to be accelerated and that Constitution does not envisage a situation of keeping the seats unfilled.
The Court had reserved judgment on last Friday, April 9, on the petitions after hearing the arguments of Senior Advocate CS Vaidyanathan (for Assembly Secretary), NN Suganapalan(for S Sharma) and Deepu Lal Mohan, ECI Standing Counsel.
The petitions filed by the Secretary of the Legislative Assembly and S Sharma challenged the Election Commission's decision to keep in abeyance elections to the Rajya Sabha seats falling vacant from the State. The ECI had initially proposed the elections on April 12. Later, on March 24, it informed that the date has been deferred.
While announcing its decision to keep the election in abeyance, the Election Commission had mentioned a reference received from the Ministry of Law and Justice.
In a statement produced in Court on Friday, the Election Commission stated that the Ministry of Law and Justice expressed a concern that if the Rajya Sabha elections were held on April 12, 2021 as suggested, the popular will as expressed in the Assembly Elections held on April 6, may not be reflected. The Commission was therefore requested to revisit the issue
The poll body contended that the requirement of Section 12 of the Representation of Peoples Act was that elections must be notified before the occurrence of vacancies. The provision does not say that the elections have to be completed before the vacancies, the ECI argued.
Describing the stance of the Election Commission as anomalous, the Counsel for the petitioners sought the holding of elections during the currency of the sitting Assembly.
Senior Advocate CS Vaidyanathan, representing the Secretary of the Kerala Assembly, submitted that the stand of the Election Commission was anomalous.
"If elections are notified before April 21, it means that the nominations have to be given based on proposal of existing members. As per Section 30 of RPA, the nominations have to be filed within 7 days of notification. If they notify on April 21, the last date for nominations will be April 28. If ECI proposal is accepted, it means one set of members will be proposing and another set of members will be voting. This is anomalous", the senior counsel said.
"The candidates who propose the candidates must be in a position to vote. Otherwise it will be an anomaly", he added.
Stressing that the Election Commission was supposed to be an independent body, he said that it cannot be playing games.
"If they have decided to notify the elections, what is holding them back from actually notifying it. Which is the mysterious hand which is holding them back?", Vaidyanathan submitted.
The ECI Standing Counsel said that the term of the present assembly is till June 2, 2021 as per Article 172 of the Constitution.
Vaidyanathan replied that it has to be presumed that the present assembly will be dissolved soon after the declaration of results on May 2.
The Union Government denied that there was any "arm-twisting" from its part in making the ECI defer the polls.
He said that the election to Rajya Sabha is a representative election, which should reflect the mandate of people must be reflected. The mandate of people is sealed on April 6.
If the members are elected based on current assembly, it will exceed the life of the next assembly. It will not reflect the mandate of the people.
"Fair election must reflect the will of people. Whether a past assembly should be permitted to decide? It is not correct to say that Centre was trying to arm twist the Election Commission. In fact, it is the petitioners who are trying to arm twist the Commission", the ASG said.
The issue pertains to the Rajya Sabha seats of Indian Union Muslim League's Abdul Vahab, CPI(M)'s KK Ragesh, the Congress's Vayalar Ravi, who are retiring on April 21.
On March 30, the Standing Counsel of the ECI had made a statement that the elections will be held during the term of the present assembly itself. However, the standing counsel immediately changed the stand after the Court recorded the statement in its order.