Kerala High Court Reserves Judgment On Pleas For Holding Rajya Sabha Elections During Present Assembly Term

The Kerala High Court on Friday reserved judgment on two writ petitions seeking directions to the Election Commission of India for holding elections to three Rajya Sabha seats from Kerala - which are falling vacant on April 21 - during the term of the present legislative assembly.

A single bench of Justice PV Asha reserved judgment on the petitions filed by the Secretary of the Kerala Legislative Assembly and S Sharma, CPI(M) MLA, challenging the ECI's decision to keep in abeyance the elections which were initially proposed on April 12.

On April 7, the Court had directed the Election Commission to disclose the reasons for its decisions to keep the polls in abeyance. Today, the Commission through Standing Counsel Deepu Lal Mohan placed a statement before the Court.

In its statement, the Commission informed the Court that on March 17, the Commission announced the proposed schedule for the conduct of the biennial election to the Council of States from Kerala. The date initially announced was April 12. Elections were proposed to be notified on March 24.

Following this, the recommendation for the dates was sent to the President, with a copy of the same marked to the Ministry of Law and Justice, the statement records.

On the eve of the proposed election notification, the Union Law Ministry 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 statement in Court intimates.

"In this case, if the elections to elect new Members to the Council of States are held on 12thApril, 2021 as suggested, the popular will, which is already recorded in the ballot box consequent to the Assembly Elections already held on 6thApril 2021, it may not reflect the will of the people.In view of the above, the Commission may kindly revisit the issue", Law Ministry's letter to ECI

Upon the receipt of this communication, the Commission sought the advice of a Senior Advocate(whose name is not disclosed in the statement) who opined that it would be constitutionally just and proper that the new Legislative Assembly, constituted the electoral college for filling up the three vacancies. The said senior advocate, kept anonymous, purportedly stated that since the three new members would represent the new Legislative Assembly for the major portion of their term, it would not be constitutionally fair and just nor consistent with basic democratic principles or spirit of the Constitution.

The Commission however said that it chose not to accept the opinion that Elections be notified only after the new Assembly came into being. It said that it as per the statutory mandate, it has to notify the elections before the retirement of the RS members. However, it said that there was no obligation to hold elections during the life of the present assembly.

The poll body contended that Section 12 of the Representation of the People Act, 1951 prohibits issuance of notification more than three months prior to the date of vacancy but does not fix the outer limit of notification. However, because a complete and absolute discretion, may lead to impropriety in notifying dates beyond expiry of terms of members, the Commission states that it would notify the schedule before the expiration of term.

"While the date of expiration of the term of current assembly may be a relevant factor for consideration it cannot be the sole basis for determining the schedule of such elections which ultimately affect the functioning of the house where the vacancies belong, i.e. the Upper House. The Commission is of the view that elections should be held timely. The Commission, as such, is not concerned so much with the question of which assembly votes for the biennial elections as is with the fulfillment of its constitutional duty to conduct these elections at the earliest," the statement reads.

The ECI's standing counsel told the Court that it has decided to notify the elections before April 21, the date of retirement of three Rajya Sabha members from Kerala.

ECI stand is anomalous, counsel of Kerala 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.

"Fixing of schedule of election is exclusively within the domain of Election Commission. They cannot demand that elections should be held on a particular date", the ECI counsel retorted. He stressed that the ECI was not acting on the dictates of anybody but was only acting based on the concern of propriety raised by the Ministry.

"The opinion of the Ministry cannot be brushed aside. We were only acting bonafide", he reiterated.

Senior Advocate NN Suganapaln, appearing for CPI(M) MLA S Sharma, supplemented the arguments of Vaidyanathan and urged the Court to pass a directions to ensure that the present assembly is able to vote for Rajya Sabha elections.

No arm-twisting by Centre, ASG tells

"If somebody wants to cast an aspersion on the Central Govt that it was trying to arm twist the ECI, it is wrong", Assistant Solicitor General P Vijayakumar told the bench.

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.