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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. Asha, J.
The Secretary, Kerala Legislative Assembly – Petitioner
Versus
The Election Commission Of India Represented By Its Secretary General Niravachan Sadan, Asoka Road, New Delhi And Ors. – Respondents
W.P.(C) No.8089 & 8092 of 2021
Decided On : 12-04-2021
Representation of People Act, 1951 – Sections 12, 153 – Constitution of India, 1950 – Articles 172, 83, 324 – Deferment of election – Two writ petitions are filed consequent to deferment of election to the 3 seats becoming vacant in the Council of States. – W.P.(C) is filed by the Secretary of the Kerala Legislative Assembly and W.P.(C) is filed by a sitting member of the Kerala Legislative Assembly –
Finding of the Court:
Power to amend or extend the schedule is 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.– 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. – 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. – 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 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 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 –
Result: Ordered Accordingly.
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.8092 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.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: 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:
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 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 14th 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 e
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