Kerala High Court
The Secretary vs The Election Commission Of India on 12 April, 2021
WP(C).No.8089 OF 2021(I)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 12TH DAY OF APRIL 2021 / 22ND CHAITHRA, 1943
WP(C).No.8089 OF 2021(I)
PETITIONER/S:
THE SECRETARY
KERALA LEGISLATIVE ASSEMBLY, LEGISLATIVE COMPLEX,
VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695033.
BY SRI.V.MANU, SENIOR GOVT. PLEADER
RESPONDENT/S:
THE ELECTION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY GENERAL NIRAVACHAN
SADAN, ASOKA ROAD, NEW DELHI - 110001.
BY ADV. SHRI.DEEPU LAL MOHAN, SC, ELECTION
COMMISSION OF INDIA
OTHER PRESENT:
SRI DEEPU LAL MOHAN SC ELECTION COMMISSION , SRI P
VIJAYAKUMAR ASG
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, ALONG WITH WP(C).8092/2021(J), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No.8089 OF 2021(I)
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 12TH DAY OF APRIL 2021 / 22ND CHAITHRA, 1943
WP(C).No.8092 OF 2021(J)
PETITIONER/S:
S.SHARMA
AGED 66 YEARS
S/O SEKHARAN,MEMBER OF LEGISLATIVE
ASSEMBLY,MANNAPASSERY HOUSE,PERUMPADANNA,NORTH
PARAVUR,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.P.K.BABU
SRI.S.SUJIN
RESPONDENT/S:
1 THE CHIEF ELECTION COMMISSION OF INDIA
NIRVACHAN,SASADAN,ASOK ROAD,
NEW DELHI-110001.
2 THE CHIEF ELECTORAL OFFICER,
ELECTION DEPARTMENT,KERALA LEGISLATIVE COMPLEX,
VIKAS BHAVAN.P.O,THIRUVANANTHAPURAM-695033.
3 THE RETURING OFFICER FOR ELECTION TO THE COUNCIL OF
STATE,RAJYASABHA FROM KERALA,KERALA LEGISLATIVE
COMPLEX,VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-
695033.
4 UNION OF INDIA MINISTRY OF LAW AND JUSTICE,
SASTRI BHAVAN,NEW DELHI-110001,
REPRESENTED BY ITS SECRETARY.
R1-2 BY ADV. SHRI.DEEPU LAL MOHAN, SC, ELECTION
COMMISSION OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, ALONG WITH WP(C).8089/2021(I), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No.8089 OF 2021(I)
3
P.V.ASHA, J.
---------------------------------
W.P.(C) No.8089 & 8092 of 2021
----------------------------------
Dated this the 12h day of April, 2021
JUDGMENT
These two writ petitions are filed consequent to deferment
of election to the 3 seats becoming vacant in the Council of
States. W.P.(C) No. No.8089 of 2021 is filed by the Secretary
of the Kerala Legislative Assembly and W.P.(C) No. No.802 of
2021 is filed by a sitting member of the Kerala Legislative
Assembly (hereinafter referred to as "Assembly" for short). As
the issue raised in both these writ petitions are identical,
both the cases are disposed of by this common judgment. The
parties and documents referred to in this judgment would be as
described in the W.P.(C) No. No.8089 of 2021, unless specified
otherwise.
2. Out of the nine members in the Council of States from
the State of Kerala, three members -M/s Vayalar Ravi, K.K.
Ragesh and Abdul Vahab are retiring on 21.04.2021 on completion
of their 6 years' term. On 17.03.2021, the Election Commission
of India issued Ext P1 press release announcing the schedule of
election for filling up the three seats fixing the date for
issuing notification as 24.03.2021; last date for making
nomination: 31st March 2021; date for scrutiny of notification:
WP(C).No.8089 OF 2021(I)
03.04.2021; date for withdrawal of candidature : 05.04.2021 and
date before which election to be completed : 12.04.2021. In
W.P.(C) No. 8092 of 2021 the petitioner has stated that
pursuant to the press release, the Returning Officer had, as per
Ext P2 proceedings dated 24.03.2021, produced in it, fixed Room
No.740 of the 3rd floor of the Kerala Legislative Assembly
Building as the place of poll with the previous approval of the
Election Commission. On the very same day I.e 24.03.2021, the
Election Commission issued another press note, stating the
following:
"The Commission vide Press Note No. ECI/PN/29/2021 DATED
17.03.2021 had announced the schedule of election for 03
seats to Council of States from Kerala as mentioned therein,
with the notification scheduled to be issued on 24.03.2021.
In the meanwhile a reference has been received from the
Ministry of Law & Justice. Pending examination of the
reference, the Commission has decided to keep the
aforementioned proposed notification and schedule in abeyance
till further orders.
3. The petitioners state that the 14th Kerala Legislative
Assembly was constituted on 20. 05.2016, based on election held
on 16.05.2016 and the first session of the same commenced on
02.06.2016 and as its five year term is not over as per Article
172 of the Constitution of India, the electoral college to the
Council of States continues and therefore there is no
justifiable reason for keeping in abeyance the proceedings for
election to seats becoming vacant on 21.04.2021 and that the
WP(C).No.8089 OF 2021(I)
schedule of dates were notified by the Commission after it
issued notification for election to the State Assembly. The
petitioners state that the Commission is bound to conduct the
election before the expiration of the term of the three outgoing
members of the Council of States; or else there would be a
shortage of three representatives for the State in the Council
of States and it should be during the currency of the 14 th
legislative assembly. The further contention of the petitioners
is that as Section 12 of the Representation of People Act, 1951
(' RP Act' for short) provides for filling up of the seats of
the 'retiring' members, on expiration of their term, the said
section envisages completion of entire process of election
before the actual retirement so as to fill up the seats as soon
as the seats become vacant, especially when the Council of
States is a continuing body, in accordance with Article 83 of
the Constitution of India. In W.P.(C) No.8092/2021, the
contention of the petitioner is that it is the constitutional
right of the members of the legislative assembly including him
to use their franchise to elect a member of their choice to the
council of State and the postponement would affect their right
as the term of the present assembly would expire in May 2021
and apart from that he would also lose his statutory right to
exercise his vote to a person of his choice. The petitioner in
W.P.(C) 8089/2012 seeks for a direction to the Commission to
conduct the election to the three vacancies at the earliest
WP(C).No.8089 OF 2021(I)
during the currency of 14th legislative assembly. In the other
writ petition, petitioner has challenged the postponement of
election by the press note dated 24.03.2021 of the Commission
and has sought for a direction to the Commission to conduct the
election in accordance with the schedule announced on
17.03.2021.
4. When the matter came up for consideration on 26.03.2021,
the learned Standing Counsel for the Commission sought time to
get instructions. On 30.03.2021, the learned Standing Counsel
filed a statement on behalf of the Commission, stating that writ
petition is premature and stating as follows in para 10:
" 10.It is submitted that as per Press Note dated
24.03.2021, the Election Commission has only decided to keep
in abeyance, the proposed notification and schedule till a
revised date of issuance of notification and schedule is
announced by the Commission. Further, on 26.03.2021the
Election Commission has already issued a communication
stating that the decision for conducting elections to the
Rajya Sabha seats from Kerala will be taken shortly and
within the existing legislative frame work as provided in
Section 12 and 30 of the Act."
5. On 07.04.2021, the learned Standing Counsel submitted
that the notification for election would be issued before
21.04.2021. On direction by this court to disclose the reason
behind the decision for postponement, the learned Standing
Counsel filed an additional statement on behalf of the
Commission on 09.04.2021. It is stated that the Commission had
announced the schedule of bienniel election on 17.03.2021 in
WP(C).No.8089 OF 2021(I)
accordance with Section 12 of the RP Act to fill the seats of
the three members retiring on 21.04.2021 and sent its
recommendation for appointment of dates as per Section 39 of the
Act to the President of India for publication of notification in
the official gazette of India, with a copy to the Ministry of
Law and Justice. On 23.03.2021 the Ministry wrote to the
Commission:
" If the election to elect the members to the Council of
States are held on 12th April 2021 as suggested, the popular
will, which is already recorded in the ballot box consequent
to the Assembly Elections already held on 6 th April 2021, it
may not reflect the will of the people.
In view of the above, the Commission may kindly revisit the
issue."
6. It is stated that the Commission thereupon kept the
publication in abeyance since an issue of propriety was raised
by the Ministry and it sought for a legal opinion from a Senior
Advocate who is an expert on Constitional and Electoral laws who
opined that it would be constitutionally just and proper that
the new assembly whose elections are being held and polling
would conclude on 06.04.2021, which is before the expiry of the
term of the three members of Rajya Sabha from the State of
Kerala should constitute the electoral College for filling up
the three vacancies. It was opined that an extra-ordinary
situation arose in the case as the election to the Legislative
Assembly was announced on 26.02.2021; notified on 12.03.2021;
polling completed on 06.04.2021; all before the expiry of the
term of members on 21.04.2021 and counting would be taken within
WP(C).No.8089 OF 2021(I)
a fortnight thereafter and therefore it was constitutional to
announce the election after the new Legislative Assembly is
constituted as those three members to be elected would represent
the new legislative assembly for the major portion of their 6
years' term; it would not be constitutionally fair or consistent
with the basic democratic principles if the election is held
with the existing assembly which is in the terminal state. It
is further stated that after consideration of the legal opinion
as well the constitutional as well as other legal provisions
Commission has decided to announce and notify the schedule of
biennial election to the Council of States from Kerala to fill
the seats of three members retiring on 21.04.2021 before the
expiry of the term of the retiring members. The Commission has
stated that it is not concerned with which assembly votes for
the election as its constitutional duty is to conduct the
elections at the earliest and that the date of expiration of the
current assembly though may be a relevant factor it cannot be
the sole basis for determining the schedule of which ultimately
affect the functioning of the Upper House. It has also relied
on the judgment in Special reference In Re (Gujarat Assembly
Election matter) : (2002) 8 SCC 237 where it was held that the
mandate under Article 234 is to conduct free and fair elections
at the earliest.
7. According to the Government of India, as argued by
Sri.P.Vijayakumar, the learned ASGI, the Election Commission had
WP(C).No.8089 OF 2021(I)
forwarded a copy of the recommendation for conducting Election
placed before the President, to the Ministry of Law and Justice
also and it had rightly pointed out the factual circumstances
arising in the matter when election was notified and a new set
of members were being elected. It was pointed out that such an
intimation was not for influencing the Election Commission and
that the Election Commission is not supposed to act under any
influence.
8. The learned Senior Counsel for the petitioners argued
that, if the notification of election is delayed till
21.04.2021, the result would be that the persons nominated by
the existing electoral college would be elected by the incoming
electoral college, as the counting of votes for election to the
legislative assembly is scheduled to be held on 02.05.2021 and
such a contingency arose only because of the postponement of
election and that the Election Commission did not act as
envisaged under Article 324 of the Constitution of India. It was
also pointed out that even after taking a decision, as stated in
the additional statement, the Commission has not so far
announced the revised schedule or taken steps for notification.
9. Heard M/s.C.S.Vidyanathan and N.N.Sugunapalan, the
respective Senior Counsel in the respective Writ Petitions duly
assisted by Sri.V.Manu, the learned Senior Government Pleader
and Advocate Sri.P.K.Babu, respectively; Sri.Deepu Lal Mohan,
the learned Counsel for the Election Commission, common
WP(C).No.8089 OF 2021(I)
respondent in both the cases and P. Vijayakumar, the learned
ASGI, appearing for the Union of India in W.P. © No. 8092 of
2021. Relying on the judgments in N.P. Ponnuswami v. Returning
Officer, Namakkal Constituency:: AIR 1952 SC 64, Mohinder Singh
Gill v. Chief Election Commr.: (1978) 1 SCC 405:AIR 1978 SC
851, Election Commission of India v. Ashok Kumar: (2000) 8 SCC
216, Manda Jaganath v. K.S. Rathnam: (2004) 7 SCC 492, Special
Reference No. 1 of 2002, In re (Gujarat Assembly Election
matter): (2002) 8 SCC 237, Election Commission of India v. State
of Haryana: 1984 Supp SCC 104, Bhim Singh v. Election
Commissioner of India : (1996) 4 SCC 188, DMDK v. Election
Commission of India: (2012) 7 SCC 340, Indira Nehru Gandhi v.
Raj Narain: 1975 Supp SCC 1, DMDK v. Election Commission of
India: (2012) 7 SCC 340, the learned Senior Counsel in both writ
petitions argued that the reliefs sought by the petitioners to
accelerate the process of election is not hit by the embargo in
Article 329(b); the 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; right to vote is a
constitutional right; there cannot be a deferment of election in
the absence of justifiable reasons, etc. Some of the judgments
like In Re Gujarat Assembly election were relied on by both
sides. Relying on the judgment of the Madras High Court in
G.Vasantha Pai V Election Commission of India in W.P.1020 of
WP(C).No.8089 OF 2021(I)
1976, the learned Counsel for the Commission argued that it is
not necessary to conduct the election before the expiry of the
term of the retiring members and that there is no provision
which mandates completion of election to the council of states
within a specific period. In order to examine the contentions,
it is appropriate to have a look at the relevant provisions in
the Constitution of India relating to the election as well as
those in RP Act.
10. Under Article 324 of the Constitution of India the
Superintendence, direction and control of the preparation of
electoral rolls and the conduct of all elections to Parliament
and to the Legislature of every State and elections to the
offices of the President and Vice President held under the
Constitution are vested in the Election Commission. Article 80
provides that the Council of States shall consist of 12 members
to be nominated by the President and not more than 238
representatives of the States and of Union Territories. As per
Article 80(4), the representatives of each state in the Council
of States shall be elected by the elected members of the
Legislative Assembly of the States in accordance with the
proportional representation by means of the single transferable
vote. As per Article 172((1) every Legislative Assembly of
every State shall, unless sooner dissolved, continue for 5 years
from the date appointed for its first meeting and no longer and
the expiration of five years shall operate as a dissolution of
WP(C).No.8089 OF 2021(I)
the assembly. Section 12 in Part III of the Representation of
People Act, 1951 which provides for notification of biennial
election to the Council of States reads as follows:
12. Notification for biennial election to the Council of
States.--For the purpose of filling the seats of members of the
Council of States retiring on the expiration of their term of
office the President shall by one or more notifications
published in the Gazette of India on such date or dates as may
be recommended by the Election Commission, call upon the
elected members of the Legislative Assembly or, as the case
may be, the members of the electoral college, of each State
concerned to elect members in accordance with the provisions
of this Act and of the rules and orders made thereunder:
Provided that no notification under this section shall be
issued more than three months prior to the date on which the
term of office of the retiring members is due to expire.
(emphasis supplied )
11. 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.
12. Nomination of candidates is dealt with in Chapter I of
Conduct of Elections, which is in Part V of the Act. Section 30
of the Act which provides for appointment of dates of
nomination, reads as follows:
30. Appointment of dates for nominations, etc.--As soon as
the notification calling upon a constituency to elect a
WP(C).No.8089 OF 2021(I)
member or members is issued, the Election Commission
shall, by notification in the Official Gazette, appoint--
(a) the last date for making nominations, which shall be
the seventh day after the date of publication of the
first-mentioned notification or, if that day is a public
holiday, the next succeeding day which is not a public
holiday;
(b) the date for the scrutiny of nominations, which shall
be the day immediately following the last date for making
nominations or, if that day is a public holiday, the next
succeeding day which is not a public holiday;
(c) the last date for the withdrawal of candidatures,
which shall be the second day after the date for the
scrutiny of nominations or, if that day is a public
holiday, the next succeeding day which is not a public
holiday;
(d) the date or dates on which a poll shall, if
necessary, be taken, which or the first of which shall be
a date not earlier than the fourteenth day after the last
date for the withdrawal of candidatures; and
(e) the date before which the election shall be
completed.
13. Section 39 of the Act which provides for the schedule
of each steps of election where the elected members of the
legislative assembly are to elect, reads as follows:
39. Nomination of candidates at other elections.--(1) As
soon as the notification calling upon the elected members
or the members of the Legislative Assembly of a State or
the members of the electoral college of a Union Territory
to elect a member or members is issued, the Election
Commission shall, by notification in the Official
Gazette, appoint--
(a) the last date for making nominations, which shall be
the seventh day after the date of publication of the
first-mentioned notification or, if that day is a public
holiday, the next succeeding day which is not a public
holiday;
(b) the date for the scrutiny of nominations, which shall
be the day immediately following the last date for making
nominations or, if that day is a public holiday, the next
succeeding day which is not a public holiday;
(c) the last date for the withdrawal of candidatures,
which shall be the second day after the date for the
scrutiny of nominations or, if that day is a public
holiday, the next succeeding day which is not a public
holiday;
(d) the date or dates on which a poll shall, if
necessary, be taken, which or the first of which shall be
a date not earlier than the seventh day after the last
date for the withdrawal of candidatures; and
WP(C).No.8089 OF 2021(I)
(e) the date before which the election shall be
completed.
(2) The provisions of Sections 31 to 38, excluding sub-
sections (2) and (5) of Section 33 and clause (a) of sub-
section (1) of Section 34, shall apply in relation to any
such election as they apply in relation to an election in
any constituency:
Provided that--
(a) any references in the said provisions to the
electoral roll of the constituency shall, unless the
context otherwise requires, be construed, in the case of
an election by the members or the elected members of the
Legislative Assembly of the State, as references to the
list of members or elected members, as the case may be,
of that Assembly maintained under sub-section (1) of
Section 152, and in the case of an election by the
members of the electoral college of a Union Territory, as
references to the list of members of such electoral
college maintained under sub-section (2) of that section;
xxxx
14. Thus Section 39 which stipulates the interval between
each of the steps in the process of election starting from the
notification till completion, would show that a minimum of 17
(7+1+2+7) days would be required for completing the election
after the issuance of notification, where as 24 days are
required for elections to the constituency. Relevant portion of
Section 152, which provides for the electoral college, reads as
follows:
152. List of members of the State Legislative Assemblies
and electoral colleges to be maintained by the returning
officers concerned.--(1) The returning officer for an election
by the elected members of the Legislative Assembly of a State
to fill a seat or seats in the Council of States or for an
election, by the members of the Legislative Assembly of a
State to fill a seat or seats in the Legislative Council of
the State shall, for the purposes of such election maintain in
his office in the prescribed manner and form a list of elected
members or a list of members, as the case may be, of that
Legislative Assembly.
15. Apart from that the time for completion can be extended
on sufficient reasons as provided in Section 153 as follows:
153. Extension of time for completion of election.--It shall
WP(C).No.8089 OF 2021(I)
be competent for the Election Commission for reasons which it
considers sufficient, to extend the time for the completion of
any election by making necessary amendments in the notification
issued by it under Section 30 or sub-section (1) of Section 39.
It would be necessary to consider the provisions contained in
Section 66 as well as Section 67A also.
66. Declaration of results.--When the counting of the votes
has been completed, the returning officer shall, in the
absence of any direction by the Election Commission to the
contrary, forthwith declare the result of the election in the
manner provided by this Act or the rules made thereunder.
67-A. Date of election of candidate.--For the purposes of
this Act, the date on which a candidate is declared by the
returning officer under the provisions of Section 53 or
Section 66, to be elected to a House of Parliament or of the
Legislature of a State shall be the date of election of that
candidate.
Therefore once the counting is over and on declaration of the
returning officer, there would be another electorate.
16. In this context it is also necessary to examine
certain other provisions in the RP Act pointed out by Sri.Deepu
Lal Mohan, the learned Counsel for the Commission, in answer to
the contentions raised with respect to the mandate for
completing the election before the actual retirement of the
members.
151-A. Time limit for filling vacancies referred to in
Sections 147, 149, 150 and 151.--Notwithstanding anything
contained in Section 147, Section 149, Section 150 and
Section 151, a bye-election for filling any vacancy
referred to in any of the said sections shall be held
within a period of six months from the date of the
occurrence of the vacancy:
Provided that nothing contained in this section shall
apply if--
WP(C).No.8089 OF 2021(I)
(a) the remainder of the term of a member in relation to
a vacancy is less than one year; or
(b) the election Commission in consultation with the
Central Government certifies that it is difficult to hold
the bye-election within the said period.
(emphasis supplied)
17. Section 147, 149, 150 and 151 relate to filling up of
casual vacancies. Section 154 deals with the term of office of
the members of the Council of States. In the case of election of
the President and Vice President, it is mandatory to complete
the election before expiration of the term of the incumbents in
office as provided under Articles 62 and 68 of the Constitution
of India, relevant portion of which read as follows:
62. Time of holding election to fill vacancy in
the office of President and the term of office of person
elected to fill casual vacancy.--(1) An election to fill a
vacancy caused by the expiration of the term of office of
President shall be completed before the expiration of the
term.
xx
68. Time of holding election to fill vacancy in
the office of Vice-President and the term of office of
person elected to fill casual vacancy.--(1) An election to
fill a vacancy caused by the expiration of the term of
office of Vice-President shall be completed before the
expiration of the term.
xx
18. In the case of election to the parliament or to
legislative assemblies no such provision is seen available in
the Constitution of India. Article 80 which deals with the
composition of the Council of States provides for the maximum
number of members in it and also for the election to it in
accordance with proportional representation only. Section 154
of RP Act 1951 which fixes the term of office of its members at
WP(C).No.8089 OF 2021(I)
6 years and provides that one third of the members holding seats
shall retire every 2nd year, as follows:
154. Term of office of members of the Council of States.--
(1) Subject to the provisions of sub-sections (2) and (2-A),
the term of office of a member of the Council of States, other
than a member chosen to fill a casual vacancy, shall be six
years.
(2) Upon the first constitution of the Council of States
the President shall, after consultation with the Election
Commission, make by order such provision as he thinks fit for
curtailing the term of office of some of the members then
chosen in order that, as nearly as may be, one-third of the
members holding seats of each class shall retire in every
second year thereafter.
(2-A) In order that, as nearly as may be, one-third of the
members may retire on the second day of April, 1958, and on
the expiration of every second year thereafter, the President
shall, as soon as may be after the commencement of the
Constitution (Seventh Amendment) Act, 1956, after consultation
with the Election Commission, make by order such provisions as
he thinks fit in regard to the terms of office of the members
elected under sub-section (2) of Section 147.
(3) A member chosen to fill a casual vacancy shall be
chosen to serve for the remainder of his predecessor's term of
office.
19. It is seen that the RP Act provides for a specific time
limit of six months for conducting the election to causal
vacancies under Section 151A. However, it would be necessary
to examine whether the Election Commission can postpone the
election to the upper house, even when no time limit is fixed
for filling up the vacant seats in council of States with
reference to the judgments cited by both sides, keeping in mind
the fact that the Commission had already announced that
notification for election would be issued on 24.03.2021 to
conduct the election before 21.04.2021 and based on that the
returning officer had made arrangements for conducting the poll
as per the schedule announced by the Election Commission; it is
WP(C).No.8089 OF 2021(I)
whileso the Election Commission deferred the election and such
deferment was based on an intimation received from the Ministry
of Law and Justice.
20. In Ponnuswami 's case (supra) , a Constitution Bench
was considering a case where the writ petition challenging the
rejection of nomination to the legislative assembly of Tamil
Nadu, was dismissed by the Madras High Court, in view of the
bar under Article 329(b) of the Constitution of India. Article
329(b) reads as follows;
"329.Notwithstanding anything in this Constitution--
(a) xx
(b) no election to either House of Parliament or to the
House or either House of the legislature of a State shall be
called in question except by an election petition presented
to such authority and in such manner as may be provided for
by or under any law made by the appropriate legislature."
The Apex Court held that the word election would embrace the
entire procedure whereby an elected member is returned. The
said dictum was reiterated in the judgment in Mohinder Singh
Gill's case stating that "election", commences from the initial
notification and culminates in the declaration of the return of
a candidate. While recognising the requirement for concluding
the elections at the earliest in accordance with the schedule,
it was held as follows in para 16 in Ponnuswami's case:
16(1) The conclusions which I have arrived at may be
summed up briefly as follows:
(1) Having regard to the important functions which the
legislatures have to perform in democratic countries, it
has always been recognized to be a matter of first
importance that elections should be concluded as early as
WP(C).No.8089 OF 2021(I)
possible according to time schedule and all controversial
matters and all disputes arising out of elections should
be postponed till after the elections are over, so that
the election proceedings may not be unduly retarded or
protracted.
(2) In conformity with this principle, the scheme the
election law in this country as well as in England is
that no significance should be attached to anything which
does not affect the 'election'; and if any irregularities
are committed while it is in progress and they belong to
the category or class which, under the law by which
elections are governed, would have the effect of
vitiating the 'election' and enable the person affected
to call it in question, they should be brought up before
a Special Tribunal by means of an election petition and
not be made the subject of a dispute before any court
while the election is in progress.
21. In the judgment in Mohinder Singh Gill v. Chief
Election Commr.: (1978) 1 SCC 405:AIR 1978 SC 851 the power of
the Commission to cancel the poll and direction to conduct re-
poll was the question which arose for consideration. The Apex
Court considered the scope of judicial review under Article 226
vis a vis the ban under Article 329(b). The following issues
were considered:
"(1) Is Article 329(b) a blanket ban on all manner of
questions which may have impact on the ultimate result of
the election, arising between two temporal termini viz.
the notification by the President calling for the
election and the declaration of the result by the
returning officer? Is Article 226 also covered by this
embargo and, if so, is Section 100 broad enough to
accommodate every kind of objection, constitutional,
legal or factual, which may have the result of
invalidation of an election and the declaration of the
petitioner as the returned candidate and direct the
organisation of any steps necessary to give full relief?
(2) Can the Election Commission, clothed with the
comprehensive functions under Article 324 of the
Constitution, cancel the whole poll of a constituency
after it has been held, but before the formal declaration
WP(C).No.8089 OF 2021(I)
of the result has been made, and direct a fresh poll
without reference to the guidelines under Sections 58 and
64(A) of the Act, or other legal prescription or
legislative backing? If such plenary power exists, is it
exercisable on the basis of his inscrutable "subjective
satisfaction" or only on a reviewable objective
assessment reached on the basis of circumstances
vitiating a free and fair election and warranting the
stoppage of declaration of the result and directions of a
fresh poll not merely of particular polling stations but
of the total constituency?
(3) Assuming a constitutionally vested capacity under
Article 324 to direct re-poll, is it exercisable only in
conformity with natural justice and geared to the sole
goal of a free, popular verdict if frustrated on the
first occasion? Or, is the Election Commission immune to
the observance of the doctrine of natural justice on
account of any recognised exceptions to the application
of the said principle and unaccountable for his action
even before the Election Court?"
22. It was held that any decision sought and rendered will
not amount to "calling in question" an election in case it
subserves the progress of the election and facilitates the
completion of the election. If anything is done in furtherance
of completion of election that cannot be described as
questioning the election and that a single step taken in
furtherance of election cannot be treated as equivalent to
election which attracts the ban. It was held that the ban under
Article 329(b) would attract only the challenges which would
interfere with the progress of the election and those which
accelerates the completion of the election and acts in
furtherance of an election would not attract the ban. It was
found that the cancellation of the poll and the ordering of
fresh poll is part of election and challenging the same amounted
to "calling it in question" which attracts the constitutional
bar. In para 30 of the judgment it was held as follows:
WP(C).No.8089 OF 2021(I)
30. The plenary bar of Article 329(b) 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 form, the right and remedy being
creatures of statutes and controlled by the Constitution.
Xxxxx
In para 34 it was further explained as follows:
34. xxxBut what is banned is not anything whatsoever done or
directed by the Commissioner but everything he does or directs
in furtherance of the election, not contrarywise. For example,
after the President notifies the nation on the holding of
elections under Section 15 and the Commissioner publishes the
calendar for the poll under Section 30, if the latter orders
Returning Officers to accept only one nomination or only those
which come from one party as distinguished from other parties
or independents, is that order immune from immediate attack. We
think not. Because the Commissioner is preventing an election,
not promoting it and the Court's review of that order will
facilitate the flow, not stop the stream. Election, wide or
narrow be its connotation, means choice from a possible
plurality, monolithic politics not being our genius or reality,
and if that concept is crippled by the Commissioner's act, he
holds no election at all.
23. It was held that the correctness, legality or otherwise
of the direction for cancellation of poll integrated with re-
poll is a step in election which is barred under Article 329(b)
of the Constitution and hence not liable to be called in
question under Article 226. It was found that that re-poll in
one or more polling stations would be lawful, for good reasons.
At the same time it was also found that if no re-poll had been
directed and there was mere cancellation it would have then
thwarted the course of the election and then the legal
perspective would have been different. It was further held that
immunity under Article 329(b) is conferred only if the act
impeached is done for the apparent object of furthering a free
WP(C).No.8089 OF 2021(I)
and fair election and the protective armour drops down if the
act challenged is either unrelated to or thwarts or taints the
course of the election.
24. In Election Commission of India v. Ashok Kumar: (2000)
8 SCC 216 it was held that the bar under Article 329(b) would
attract only if the election is called in question. Analysing
the 2 Constitution Bench Judgments in N.P. Ponnuswami's case and
in Mohinder Singh Gill's case a three Judge Bench found that
there may be cases where relief sought may not interfere with
the process of election but where relief is sought for
correcting the process of election taking care of such
aberrations which can be corrected only at that particular
moment failing which the stream of the process may break its
bounds and a relief is sought for proceeding with the process of
election in accordance with rules when circumstances are such
that the wrong done shall not be undone after the election is
over. In such cases also the intervention of the court shall
not interrupt the ongoing process of election. In paragraph 32,
it was concluded as follows:
32. For convenience sake we would now generally sum up our
conclusions by partly restating what the two Constitution Benches
have already said and then adding by clarifying what follows
therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted so
as to include all steps and entire proceedings commencing from the
date of notification of election till the date of declaration of
result) is to be called in question and which questioning may have
the effect of interrupting, obstructing or protracting the election
proceedings in any manner, the invoking of judicial remedy has to be
postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in
question an election" if it subserves the progress of the election
WP(C).No.8089 OF 2021(I)
and facilitates the completion of the election. Anything done
towards completing or in furtherance of the election proceedings
cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well-settled
parameters which enable judicial review of decisions of statutory
bodies such as on a case of mala fide or arbitrary exercise of power
being made out or the statutory body being shown to have acted in
breach of law.
(4) Without interrupting, obstructing or delaying the progress of
the election proceedings, judicial intervention is available if
assistance of the court has been sought for merely to correct or
smoothen the progress of the election proceedings, to remove the
obstacles therein, or to preserve a vital piece of evidence if the
same would be lost or destroyed or rendered irretrievable by the
time the results are declared and stage is set for invoking the
jurisdiction of the court.
(5) The court must be very circumspect and act with caution while
entertaining any election dispute though not hit by the bar of
Article 329(b) but brought to it during the pendency of election
proceedings. The court must guard against any attempt at retarding,
interrupting, protracting or stalling of the election proceedings.
Care has to be taken to see that there is no attempt to utilise the
court's indulgence by filing a petition outwardly innocuous but
essentially a subterfuge or pretext for achieving an ulterior or
hidden end. Needless to say that in the very nature of the things
the court would act with reluctance and shall not act, except on a
clear and strong case for its intervention having been made out by
raising the pleas with particulars and precision and supporting the
same by necessary material. (emphasis supplied)
25. In the judgment in Manda Jaganath v. K.S. Rathnam:
(2004) 7 SCC 492, a two Judge Bench of the Apex Court interfered
with the judgment of the High Court of Andhra Pradesh which
directed acceptance of the nomination of a candidate which the
returning officer had rejected. The embargo under Article 329(b)
was found to have attracted in that case. While following the
dictum laid down in Mohinder Gill's case on the circumstances
where intervention is required, the Apex court held as follows
in para 18:
18. Of Course what is stated by this Court hereinabove is not
exhaustive of a Returning Officer's possible erroneous actions
which are amenable to correction in the writ jurisdiction of
the courts. But the fact remains that such errors should have
the effect of interfering in the free flow of the scheduled
election or hinder the progress of the election which is the
WP(C).No.8089 OF 2021(I)
paramount consideration. If by an erroneous order conduct of
the election is not hindered then the courts under Article 226
of the Constitution should not interfere with the orders of the
Returning Officers, remedy for which lies in an election
petition only.
26. In view of the dictum laid down in the aforesaid
judgments it can be safely concluded that these writ petitions
which seek directions to expedite the elections do not attract
the embargo under Article 329(b) of the Constitution of India.
It is also pertinent to note that no such contention is raised
by the Commission in these cases. The next question to be
considered is on the extent of the power conferred on the
Commission under Article 324.
27. Regarding the powers, superintendence, etc vested in
the Election Commission under Article 324 it was held as follows
in the judgment in Mohinder Gill's case:
38.xxxxNo one is an imperium in imperio in our constitutional
order. It is reasonable to hold that the Commissioner cannot
defy the law armed by Article 324. Likewise, his functions are
subject to the norms of fairness and he cannot act arbitrarily.
Unchecked power is alien to our system.
39. Even so, situations may arise which enacted law has not
provided for. Legislators are not prophets but pragmatists. So
it is that the Constitution has made comprehensive provision in
Article 324 to take care of surprise situations. That power
itself has to be exercised, not mindlessly nor mala fide, not
arbitrarily nor with partiality but in keeping with the
guidelines of the rule of law and not stultifying the
Presidential notification nor existing legislation. More is not
necessary to specify; less is insufficient to leave unsaid.
Article 324, in our view, operates in areas left unoccupied by
legislation and the words "superintendence, direction and
control, as well as 'conduct of all elections', are the
broadest terms". Myriad maybes, too mystic to be precisely
presaged, may call for prompt action to reach the goal of free
and fair election. Xxxxxxxx
Secondly, when a high functionary like. the Commissioner is
vested with wide powers the law expects him to act fairly and
legally. Article 324 is geared to the accomplishment of free
and fair elections expeditiously. Moreover, as held in
Virendra(Virendra v. State of Punjab: AIR 1957 SC 896) and
WP(C).No.8089 OF 2021(I)
Harishankar(Harishankar Bagla v. State of M.P: AIR 1954 SC 465
discretion vested in a high functionary may be reasonably
trusted to be used properly, not perversely. If it is misused,
certainly the Court has power to strike down the act. xx
28. In the judgment in Election Commission of India v.
State of Haryana: 1984 Supp SCC 104 the Election Commission
proceeded with its decision to conduct a bye election along with
election in other States, as scheduled despite request from the
Chief Secretary to defer the same pointing out law and order
situation. It was interdicted by the High Court. While allowing
the appeal, the Apex Court held as follows in para 8:
"8. xxxxxxIt is not suggested that the Election Commission can
exercise its discretion in an arbitrary or mala fide manner.
Arbitrariness and mala fides destroy the validity and efficacy
of all orders passed by public authorities. It is therefore
necessary that on an issue like the present, which concerns a
situation of law and order, the Election Commission must
consider the views of the State Government and all other
concerned bodies or authorities before coming to the
conclusion that there is no objection to the holding of the
elections at this point of time."
29. The judgment in Election Commission of India v. Union
of India: 1995 Supp (3) SCC 643, which is also relied on by the
learned Senior Counsel for petitioners as well as the learned
Counsel for the Election Commission, was in a petition filed by
the Election Commission of India, when it found it impossible to
discharge its constitutional obligations in view of a deadlock
created by the Government of India and therefore had passed
orders postponing all the elections, which were
announced/notified/in progress, until further orders. The Apex
court held as follows in para 8:
8. While we reiterate the judicial perception as to the
constitutional position and the plenitude of the powers of the
Election Commission as a high and exclusive body charged with
WP(C).No.8089 OF 2021(I)
the duty, at once sensitive and difficult, of overseeing free
and fair elections in the country and that its perceptions of
the imperatives for a free and fair elections are not to be
interfered with by the courts, we must also indicate that
there are no unreviewable discretions under the constitutional
dispensation. The overall constitutional function to ensure
that constitutional authorities function within the sphere of
their respective constitutional authority is that of the
courts. Whether the blanket suspension of the electoral
process purported in the order dated 2-8-1993 is justifiable
on that principle of judicial review is eminently arguable.
But one thing seems clear : the jurisdiction of courts would
not extend to issuing directions to the Election Commission
for the conduct of particular polls on particular dates
independently of the perception by the Commission as to their
feasibility and practicability consistent with what may be
needed to ensure the purity of the electoral process.
Xxxxxxxxx
30. Regarding the right to vote , in Ponnuswami's case it
was held that the right to vote or to stand as a candidate is
not a civil right but one created under statute and it must be
subject to the limitations imposed in it. But in Mohinder Singh
Gill's case in para 66 it was concluded that every Indian has a
right to elect and be elected and it is a constitutional as
distinguished from a common law right and is entitled to
cognizance by courts, subject to statutory regulation. In
People's Union for Civil Liberties v. Union of India: (2003) 4
SCC 399, it was held that the right to vote, is a
constitutional right, and that in accordance with the
constitutional mandate contained in Article 326, the right has
been shaped by the RP Act and that it is not very accurate to
describe it as a statutory right, pure and simple. Following the
aforesaid proposition in the dissenting judgment in DMDK v.
Election Commission of India: (2012) 7 SCC 340, it was held that
every citizen of this country has a constitutional right both to
WP(C).No.8089 OF 2021(I)
elect and also be elected to any one of the legislative bodies
created by the Constitution which can be curtailed only by a
law made by the appropriate legislation, that too only on
grounds specified under Article 326.
31. The next question to be considered is in respect of
the requirement of conducting election before expiration of the
term of the retiring members; the power of the election
Commission to defer the elections, etc. In Indira Nehru Gandhi
v. Raj Narain: 1975 Supp SCC 1, Hon'ble Khanna J, in the
separate judgment, while considering the constitutional validity
of Article 329A(4), reiterated that democracy is part of the
basic structure of the constitution and emphasized the
requirement of periodical election in para 198, as follows:
Democracy postulates that there should be periodical
elections, so that people may be in a position either to re-
elect the old representatives or, if they so choose, to change
the representatives and elect in their place other
representatives. Democracy further contemplates that the
elections should be free and fair, so that the voters may be
in a position to vote for candidates of their choice.
Democracy can indeed function only upon the faith that
elections are free and fair and not rigged and manipulated,
that they are effective instruments of ascertaining popular
will both in reality and form and are not mere rituals
calculated to generate illusion of defence to mass opinion.
32. A 5 Judge Bench of the Apex Court was answering a
reference under Article 143 of the Constitution of India in
Special Reference No. 1 of 2002, In re (Gujarat Assembly
Election matter): (2002) 8 SCC 237, (which was relied on by all
the Counsel including the learned ASGI, There the Governor
dissolved the assembly on 1.07.2002 whereas the normal
completion of its term was till 18.03.2003. Though the Election
WP(C).No.8089 OF 2021(I)
Commission took steps for conducting election immediately
thereafter, it found that it was not possible to hold election
enabling the convening of the next session of the assembly
within six months of the date of last session of the legislative
assembly, which was to fall on 03.10.2002, as required under
Article 174. It was of the view that the President would have to
step in, in such a situation. The President of India made the
reference in that context seeking opinion on the aspects:
(i)whether Article 174 is subject to Article 324 as to the
schedule of election; (ii) can the Election Commission frame a
schedule for election to the assembly on the premise that any
infraction under Article 174 would be remedied by resorting to
Article 356 and (iii) is the Election Commission under duty to
carry out the mandate under Article 174 by drawing upon all the
requisite resources of the Union and State to ensure free and
fair election. Hon'ble Justice K.G. Balakrishnan, concurring
with the majority, in his separate judgment, while dealing with
the apprehension as to a contingency of the Election Commission
indefinitely delaying the election, held in para 105 that the
Election Commission which is vested with the power to decide the
election schedule can act only in accordance with the
constitutional provisions. It further held that when an assembly
is dissolved it is the duty of the Election Commission to
conduct fresh election and see that a democratically elected
Government is installed at the earliest. It was also held that
WP(C).No.8089 OF 2021(I)
any decision by the Election Commission, which is intended to
defeat this very avowed object of forming an elected Government
can be challenged before the Court if the decision taken by the
Election Commission is perverse, unreasonable or for extraneous
reasons and in case the decision of the Election Commission is
vitiated by any of these grounds the Court can give appropriate
direction for the conduct of the election.
33. Another question which was considered in the Special
reference in Gujarat Assembly was about the limitation, if any,
on the powers of the Election Commission to frame schedule for
the purpose of holding election for constituting Legislative
Assembly. In para. 80 it was held as follows:
80. So far as the framing of the schedule or calendar for
election of the Legislative Assembly is concerned, the same is
in the exclusive domain of the Election Commission, which is
not subject to any law framed by Parliament. Parliament is
empowered to frame law as regards conduct of elections but
conducting elections is the sole responsibility of the
Election Commission. As a matter of law, the plenary powers of
the Election Commission cannot be taken away by law framed by
Parliament. If Parliament makes any such law, it would be
repugnant to Article 324. Holding periodic, free and fair
elections by the Election Commission are part of the basic
structure and the same was reiterated in Indira Nehru Gandhi
v. Raj Narain.
34. The interpretation of the word "expiration" occurring
in Section 14 of the RP Act also came up for consideration in
that judgment In re (Gujarat Assembly Election matter) in para
79 of the judgment it was found as follows:
79. However, we are of the view that the employment of the
words "on an expiration" occurring in Sections 14 and 15
of the Representation of the People Act, 1951 respectively
show that the Election Commission is required to take
steps for holding election immediately on expiration of
WP(C).No.8089 OF 2021(I)
the term of the Assembly or its dissolution, although no
period has been provided for. Yet, there is another
indication in Sections 14 and 15 of the Representation of
the People Act that the election process can be set in
motion by issuing of notification prior to the expiry of
six months of the normal term of the House of the People
or Legislative Assembly. Clause (1) of Article 172
provides that while promulgation of emergency is in
operation, Parliament by law can extend the duration of
the Legislative Assembly not exceeding one year at a time
and this period shall not, in any case, extend beyond a
period of six months after promulgation has ceased to
operate. Further, under Articles 123 and 213, the life of
an ordinance promulgated either by the President or by the
Governor, as the case may be, is six months and repeated
promulgation of ordinance after six months has not been
welcomed by this Court. Again, under Articles 109, 110,
and 111 and analogous articles for the State Assembly,
Money Bill has to be passed by the House of the People or
by the Legislative Assembly. The aforesaid provisions do
indicate that on the premature dissolution of the
Legislative Assembly, the Election Commission is required
to initiate immediate steps for holding election for
constituting Legislative Assembly on the first occasion
and in any case within six months from the date of
premature dissolution of the Legislative Assembly.
35. In Bhim Singh v. Election Commissioner of India :
(1996) 4 SCC 188 , while considering the constitutionality of
Section 30(d) of the RP Act, in not providing maximum time
limit for holding 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.
WP(C).No.8089 OF 2021(I)
36. In the judgment dated 15.04.1976 in G.Vasantha Pai V
Election Commission of India in W.P.1020 of 1976, relied on by
Sri.Deepu Lal, the learned Counsel for the Election Commission,
the Madras High Court considered a case more or less similar to
the present one where the petitioner sought directions to the
Election Commission to conduct election to fill up the seats
in the Tamil Nadu Legislative Council as 21 out of 63 members
from different categories, were retiring on 20.04.1976, for
which the State Government sent proposal to the Election
Commission on 30.01.1976. 7 were to be filled up from the Tamil
Nadu Legislative Assembly, As the President of India proclaimed
emergency on 31.01.1976 and the legislative assembly stood
dissolved, the Election Commission took steps for conducting
election from other constituencies for filling up the other
vacancies and issued a press release on 03.03.1976 announcing
the schedule of biennial election. However on receipt of a
message from the Chief Secretary to Government as to the law and
order situation on account of the President's proclamation, the
Commission decided to withdraw its proceedings for notification
and informed the same on 05.03.1976. The petitioner sought a
direction to conduct the election as per the schedule announced
on 03.03.1976 and before the expiration of the term of the
existing members stating that the same was mandatory under the
RP Act or otherwise it will result in dissolution of the
Council, for which the Commission has no power. The
WP(C).No.8089 OF 2021(I)
Commission's contention was that the Council itself was under
suspended animation because of the proclamation under Article
356 and that the postponement was on sufficient reason. The High
Court held that the absence of full strength in the Council at a
particular time will not result in its dissolution. The
contention of the petitioner relying on Section 16 of the RP Act
that there should be an outer limit for issuing the
notification, was rejected stating that Section 16 does not
provide for any outer limit and that it cannot be held that it
is mandatory to conduct the election before the retirement of
the existing members. The Court found that the Commission
postponed the election because of the law and order situation.
It was further held that there was only a press release and that
when no notification was issued under Section 16,30 or 31, the
election process cannot be said to have commenced and there was
no question of adding or amending any notification. It was held
the power of superintendence, direction and control over the
conduct of election vested in the Election Commission under
Article 324 would include the power to postpone the election if
the circumstances are not conducive for the fair and proper
conduct of the election at any point of time. It was further
held that there is no constitutional mandate to hold the
election before the expiration of the term as contained in
Article 62, though normally the biennial election is to be
completed before the expiration of the term. It is pertinent
WP(C).No.8089 OF 2021(I)
to note that the Commission postponed the election as it was
convinced of the situation consequent to the proclamation of
emergency.
37. The circumstances arising in the present case are not
similar to those in Vasantha Pai's case where valid reasons were
available. In the present case there is no law and order
situation as was in the case of Vasantha Pai. Therefore, the
said judgment would not apply to the present case, where the
proceedings were kept in abeyance on receipt of the reference
from the Central Government. On an overall reading of the
provisions contained in Rule 14, 30, 39, etc of the RP Act read
with the provisions contained in Article 80(4) of the
Constitution of India it can only be concluded that the
intention is not to keep the seats unfilled but to complete the
process of election before the retirement of the members, so as
to have the full strength of members in the Upper House to
represent the State. A different view is warranted only when
there is any law and order situation or any practical
impossibility. The power to amend or extend the schedule are
not to be invoked normally. Such circumstances are not available
in the present case. It is true that it is completely within the
purview of the Commission to fix the schedule; but the
postponement of election is not envisaged either in the
Constitution or in the rules, in the absence of good and
sufficient reasons.
WP(C).No.8089 OF 2021(I)
38. As pointed out by the learned ASGI, it cannot be said
that the Government of India wanted to influence the Commission.
As argued by all the learned Senior Counsel including the
Counsel for the Commission and the learned ASGI, Election
Commission of India which is conferred with wide powers and
entrusted with onerous duties enjoined under Article 324 is not
expected to be influenced on the basis of a reference.
Commission which itself had announced and notified the election
to the legislative assembly was very aware of the situation when
it issued the press release with the schedule of election to the
Council of States proposing completion by 16.04.2021. Once the
counting is over and on declaration by the returning officer,
there would be another electorate. It could have been avoided
in the event of conduct of election as scheduled and also if it
is conducted expeditiously before the date of counting scheduled
on 2nd May 2021. The fact that it is upto the Commission to fix
the schedule of election would not mean that the Commission can
fix any date. As held in the judgment in Mohinder Gill's case
(supra) when a high functionary like. The Commissioner is vested
with wide powers it is incumbent on the Commissioner to act
fairly and legally as Article 324 is geared to the
accomplishment of free and fair elections expeditiously. 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
WP(C).No.8089 OF 2021(I)
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. It is seen that at least after it arrived at
the decision that it is its duty to see that the vacancies are
filled up at the earliest, the Commission is yet to take any
steps for the same.
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.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.8089 OF 2021(I)
APPENDIX OF WP(C) 8089/2021
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE PRESS NOTE NO.
ECI/PN/29/2021 DATED 17TH MARCH, 2021
ISSUED BY THE FIRST RESPONDENT ELECTION
COMMISSION OF INDIA.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE PRESS NOTE NO.
ECI/PN/36/2021 DATED 24TH MARCH 2021 ISSUED
BY THE RESPONDENT ELECTION COMMISSION OF
INDIA.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF
THE RESUME OF BUSINESS TRANSACTED DURING
THE FIRST SESSION OF THE FOURTEENTH KERALA
LEGISLATIVE ASSEMBLY.
WP(C).No.8089 OF 2021(I)
APPENDIX OF WP(C) 8092/2021
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE
RETURNING OFFICER FIXING THE DATE TO THE
ELECTION OF THE MEMBERS TO THE RAJYASABHA
DATED 24.3.2021
EXHIBIT P2 TRUE COPY OF THE NOTIFICATIONM DATED
24.3.2021 ISSUED BY THE ELECTION COMMISSION
APPOINTING THE RETURNING OFFICER
EXHIBIT P3 TRUE COPY OF THE PRESS NOTE ISSUED FROM THE
MINISTRY OF LAW
EXHIBIT P4 TRUE COPY OF THE LETTER NO.318/CS/KL/2021/B
DATED 24-3-2021 ISSUED BY THE ELECTION
COMMISSION OF INDIA TO THE CHIEF ELECTORAL
OFFICER,KERALA.
