Document Fragment View
Fragment Information
Showing contexts for: Assembly election in The Secretary vs The Election Commission Of India on 12 April, 2021Matching Fragments
" 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.
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.
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:
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.