What is acknowledged as an obligation should not be put on hold: Kerala High Court

The Election Commission of India is entrusted with onerous duties under Article 324 hence is not expected to be influenced on the basis of a reference. The Commissioner is vested with wide powers it is incumbent on the Commissioner to act fairly and legally. Any delay in holding the elections will necessarily cause disruption since representation in the upper House from the State of Kerala will be unfair since it will lead to a situation where the nomination was made by a different assembly and voting by another assembly. Thus, it is the duty of the EC to see that the vacancies are filled up at the earliest and in a legal and fair manner. This remarkable judgment was recently passed by Kerala High Court in the matter of THE SECRETARY V ELECTION COMMISSION OF INDIA [WP(C) NO.8089 AND 8092 OF 2021] by Honourable Justice P.V.Asha.

These two writ petitions were filed consequent to deferment of election to the 3 seats which were left vacant in the Council of States. W.P. No.8089 was filed by the Secretary of the Kerala Legislative Assembly and W.P. No. 8092 was filed by a sitting member of the Kerala Legislative Assembly. Both the cases were heard together since the issue raised in both petitions was identical.

Through this writ petition, the Secretary and the member of the Legislative Assembly challenged the Election Commission’s decision to keep in abeyance elections to the Rajya Sabha till further orders. ECI vide Press Note No. ECI/PN/29/2021 of 17.03.2021 had previously announced the schedule of election for 03 seats to Council of States from Kerala but after receiving a reference from the Ministry of Law & Justice the Commission had decided to keep the schedule in abeyance till further orders.

The petitioner had contended that Commission is duty-bound to carry out its duties as envisaged in Article 324 of the Constitution of India and steps shall be taken for conducting the election before the expiration of the term of retiring members. In this regard the court asserted that after analyzing Section 12 of the Representation of Peoples Act it is clear that, “Much emphasis was made to the expression “retiring” by the learned Senior Counsel appearing for the petitioners, referring to the proviso to Section 12, which prohibits any notification prior to the expiration of the term of office of the retiring members arguing that the proceedings shall commence and complete before the actual retirement of the members and that there shall not be any vacuum. I am also of the view that 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 HC Court relied on MOHINDER SINGH GILL & ANR. Vs. THE CHIEF ELECTION COMMISSIONER, NEW DELHI & ORS. (1978) 1 SCC 405 to assert that, “The plenary bar of Article 329b rests on two principles: (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other forms, the right and remedy being creatures of statutes and controlled by the Constitution.

It was also observed that “In Bhim Singh v ECI (1996) 4 SCC 188 while considering the constitutionality of Section 30(d) of the RP Act, in not providing maximum time limit for holding an election, it was emphasized that functionaries in any manner concerned with directing the conduct, supervision, and control of free, fair and peaceful elections to the House of the People and the Legislative Assemblies of the States need to adopt a realistic, pragmatic and flexible approach to ensure that the country shall be governed in its true, secular, socialist, democratic perspective. All these judgments would show that process of election has to be accelerated and that Constitution does not envisage a situation of keeping the seats unfilled.

Therefore, the High Court directed the commission to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.

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