Rajya Sabha Elections : Election Commission First Says Polls Will Be Held During Present Assembly Term; Later Changes Stand

The elections to three Rajya Sabha seats from Kerala, which will become vacant on April 21 on account of the retirement of the incumbents, will be held during the currency of the present legislative assembly, the Election Commission of India assured the Kerala High Court on Monday.

While the High Court initially recorded this statement made by Advocate Deepu Lal Mohan, the Standing Counsel of the Election Commission, a few minutes after the hearing ended, he requested the Court not to record his oral submission.

The Court's initial order when dictated stated : "The learned standing counsel for ECI submitted that the election to the Rajya Sabha seats will be conducted during the currency of the 14 legislative assembly. This is recorded".

At the Standing Counsel's request, the matter will now be considered on April 5 for reporting compliance. 

A single bench of Justice P V Asha was considering the writ petitions filed by the Secretary of the Kerala Legislative Assembly and S Sharma, CPI(M) MLA, challenging the ECI's decision to defer the elections proposed on April 12. Elections to the Kerala assembly are going to be held on April 6.

Senior Advocate CS Vaidyanathan, appearing for the Assembly Secretary, submitted that the statement filed by the ECI has only stated that elections will be notified as per the statutory schedule, without specifying the dates.

"19 days are needed for the process. Since the retirement of the members is on April 21, the last date for notification is April 2, which is a holiday. As per Section 12 of the Representation of Peoples Act, the election has to be completed before the retirement of members. They have scrupulously followed this in all other cases. The notification will have to be issued today or tomorrow, Friday being a public holiday", Vaidyanathan submitted.

The ECI's counsel submitted that the RP Act only spoke about notifying elections before the retirement of members. He further said that since the term of the present Assembly is till June 1, the petitions are "pre-mature".

The bench however pointed out that assembly elections are going to be held on April 6 and the results will be declared on May 2.

The ECI's counsel then assured the bench that the elections will be held during the currency of the present assembly. Senior Advocate Vaidyanathan requested the bench to record this submission of the ECI and to post the case next week to report compliance. Senior Advocate NN Sugunapalan, who was appearing for S Sharma, supported Vaidyanathan.

Election Commission had initially announced that the elections for the three seats will be held on April 12, ahead of the retirement of the members on April 21.

Later, on March 24, the ECI informed through a press release that the elections have been deferred after a communication has been received from the Union Ministry of Law and Justice.

Senior Advocate Vaidyanathan had submitted yesterday that the Ministry of Law and Justice has no right to interfere with the decision taken by the Election Commission; it is the independent function conferred on the Commission by the Constitution.

"What is the locus of law and ministry? What is the reference received by the Commission? There is no transparency, no disclosure, as to what the objection was", Vaidyanathan submitted.

He emphasized that the Election Commission's decision to keep the elections in abeyance was in the "teeth of the constitutional requirement that the elections should be done before the seats fall vacant".

Vaidyanathan further submitted that the electoral college for the Rajya Sabha polls in the state assembly. As on date, there is a state assembly in existence. The period of the current assembly is till June 2 as per Article 174 of the Constitution, as its first session was held on June 2, 2016.

Citing various Supreme Court precedents, Vaidyanathan submitted that judicial interference is possible to advance and smoothen the conduct of elections. The petitioners are not seeking to obstruct elections but to conduct it as per the Constitutional mandate.

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.

"During the term of the three members, the MLAs have a right to vote, when the assembly is live", Vaidyanthan submitted. As regard the locus of the Assembly Secretary to file the writ petition, he referred to Article 187 of the Constitution, which speaks of the Secretariat of the State Legislature, and said that the Secretary acts as the voice of the members.

Saying that 19 days are required for the election process, Vaidyanathan urged the High Court to direct the poll body to immediately notify the election dates so that the polls can be done before the retirement of the three incumbent members.

Senior Advocate NN Suganapalan, appearing for S Sharma MLA, submitted that his client was personally aggrieved as his right to vote was affected. He submitted that the petitioner was seeking the continuance of election process by removing the obstruction created by the Law Ministry. He emphasized that the ECI has not disclosed any reasons for deferring the polls.