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Dr. Varghese Perayil v/s The Election Commission of India, New Delhi, Rep. by Its Secretary & Others


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    WP(C). No. 18725 of 2020 (S)

    Decided On, 14 September 2020

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Petitioner: Mathew Kuriakose, J. Krishnakumar (Adoor), Advocates. For the Respondents: R1-R3, Murali Purushothaman, SC, R4 & R5, Tek Chand, Sr. Government Pleader.



Judgment Text

Manikumar, C.J.1. Former Principal of St. Cyril's College, Adoor, as well as State President of the Voters Association, and claiming to be a social worker, petitioner has filed the instant writ petition, as a Public Interest Litigation, seeking for a direction to the Election Commission of India, respondent No.1, not to conduct the bye-election for Chavara and Kuttanad Assembly Constituencies, in the State of Kerala.2. Facts, as narrated by the petitioner for filing the writ petition, are that, pursuant to the death of the Members of Chavara and Kuttanad Assembly Constituencies, in the State of Kerala, the Election Commission of India, New Delhi, respondent No.1, has announced bye-election, to be held in November, 2020.3. According to the petitioner, the Chief Electoral Officer, Kerala, respondent No.3, in fact, has suggested that bye-election could be dropped, as there is only a few months of tenure remaining for the State Assembly and also considering the present scenario of COVID-19 pandemic. However, the first respondent has decided to conduct the bye-election. But, the election has not so far been notified.4. The reliefs sought for in the writ petition are as follows:(a) Issue a writ of mandamus or any other writ, order, or direction, commanding respondents 1 & 2, viz., the Election Commission of India, New Delhi, represented by its Secretary, and the Chief Election Commissioner, New Delhi, not to proceed with the process of bye-election for Chavara and Kuttanad Legislative Constituencies of Kerala during the rest of the tenure of present Legislative Assembly of Kerala.(b) Issue such other appropriate writ, order or direction, which this Court may deem fit in the circumstances of the case; and(c) Award costs of these proceedings to the petitioner;”5. On the averments and material on record, Mr. Mathew Kuriakose, learned counsel for the petitioner, contended that if bye-election is conducted, as announced by the first respondent, the members to be elected would hardly get four months' time to officiate as MLAs, that the Government/contestants etc. have to spend substantial amount, there would be wastage of public money, and that, it would be difficult for the voters and the officers on election duty to cast their votes and participate in the election process, due to the restrictions and threat of COVID-19 pandemic.6. Learned counsel for the petitioner further contended that, to the best of the knowledge and information of the petitioner, majority of the voters and even the Government of Kerala, the Chief Electoral Officer, Kerala, and also the political parties, are of the opinion that there is no need to conduct bye-elections, at present, for Chavara and Kuttanad Constituencies. Petitioner has also submitted Exhibit-P1 representation dated 07.09.2020 through e-mail to the Chief Election Commissioner, New Delhi, 2nd respondent, who is the Chairman of the first respondent, Election Commission of India, for cancelling the bye-election.7. Learned counsel for the petitioner referred to Sections 150, 151 & 151 A of the Representation of the People Act, 1951, and also to the decision of the Hon'ble Supreme Court in Pramod Laxman Gudadhe v. Election Commission of India and Ors. [AIR 2018 SC 2356].8. Per contra, inviting to the Election Commission of India, Model Code of Conduct for the Guidance of Political Parties and Candidates, Mr. Murali Purushothaman, learned standing counsel for respondents 1 to 3, submitted that before announcement of the date of elections, by issuance of a notification, a meeting would be convened by the Election Commission for the abovesaid purpose, and as on today, such meeting has not been convened by the Election Commission and that, therefore, instant writ petition filed with the prayers sought for is premature.9. On the aspect of conducting bye-elections, which, according to the petitioner, would enable the elected persons to be the members of the Legislative Assembly only for a period of four months, wastage of money by the Government and the candidates, and as to when the vacancies have arisen, consequent to the death of the members of Legislative Assembly, i.e., Mr. N. Vijayan Pillai on 20.12.2019, in the case of Chavara Assembly Constituency, and Mr. Thomas Chandy on 8.3.2020, in the case of Kuttanad Assembly Constituency, Mr. Murali Purushothaman, learned standing counsel for respondents 1 to 3, submitted that the Assembly ends on 01.06.2021 and having regard to Section 151A of the Representation of the People Act, 1951, conduct of bye-election, even if notified, would be valid. But as on today, it is not done. Referring to the Note in Clause VII of the Code of Conduct for Guidance of Political Parties and candidates, learned standing counsel for the Election Commission submitted that the Commission shall announce the date of any election which shall be a date ordinarily not more than three weeks prior to the date on which the notification is likely to be issued in respect of such elections. He further submitted that such meeting has not been convened so far. For the above said reasons, he prayed for dismissal of the writ petition, as premature.10. Heard learned counsel for the respective parties and pursued the material on record.11. Before averting to the rival submissions, let us consider a few provisions of the Constitution of India and the Representation of the People Act, 1951.12. Chapter III of the Constitution of India deals with the State Legislature. Article 172 of the Constitution of India, deals with the definition of the State Legislature, and the same is extracted hereunder:“172. Duration of State Legislatures(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.”13. Sections 150, 151, and 151 A of the Representation of the People Act, 1951, state thus:“150. Casual vacancies in the State Legislative Assemblies.-(1) When the seat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon the assembly constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.151. Casual vacancies in the State Legislative Councils.—When before the expiration of the term of office of a member elected to the Legislative Council of a State, his seat becomes vacant or is declared vacant or his election to the Legislative Council is declared void, the Election Commission shall, by a notification in the Official Gazette, call upon the council constituency concerned or the members of the Legislative Assembly of the State, as the case may be, to elect a person for the purpose of filling the vacancy so caused, before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.151A. 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 byeelection 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—(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.”14. Sections 150 to 151 A of the Representation of the People Act, 1951, deal with casual vacancies in the State Legislative Assemblies and the time limit for filling up of vacancies. A conjoint reading of Article 172 of the Constitution of India and the provisions of the Representation of the People Act, 1951, makes it manifestly clear that bye-elections have to be conducted taking note of the remainder of the term of the member of the Legislative Assembly, in relation to a vacancy, which is more than a year.15. Note in Clause VII of the Model Code of Conduct for Guidance of Political Parties and Candidates, referred to by Mr. Murali Purushothaman, learned standing counsel for respondents 1 to 3, as regards announcement of the date of any election, reads thus:“Note : The Commission shall announce the date of any election which shall be a date ordinarily not more than three weeks prior to the date on which the notification is likely to be issued in respect of such elections.”16. In Pramod Laxman Gudadhe (cited supra), relied on by the learned counsel for the petitioner, the Hon'ble Supreme Court held thus.“12. At the very outset, we must make a distinction between Sections 147, 149, 150 and 151 on the one hand and Section 151A of the Act on the other. While interpreting these provisions, it has to be kept in mind that though the right to elect a person is fundamental to democracy, yet it is only a statutory right. It is also well settled in law that the legislations governing the said right have to be strictly construed.13. A two-Judge Bench in D. Sanjeevayya v. The Election Tribunal, Andhra Pradesh and Ors. (AIR 1967 SC 1211), prior to the insertion of Section 151A of the Act, was dealing with the controversy that pertained to occurring of a casual vacancy and, in that context, referred to the scheme of the Chapter pertaining to bye-elections and analyzed Article 190(3) of the Constitution. The Court, referring to the said Article and the various provisions of the statute and after adverting to the fact situation where an election petition was pending challenging the election, held:“4. We are unable to accept the argument of the Appellant as correct. In our opinion, the provisions of Section 150 of the Act must be interpreted in the context of Sections 84 and 98(c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the Appellant is accepted as correct the vacancy must be filled by a byeelection as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise, It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well settled Rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one Section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them....”Proceeding further, the Court ruled that when an election petition has been referred to a tribunal by the Election Commission and the tribunal is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election and secondly, it has to decide whether the second Respondent therein should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning from the seat in the Legislature, whatever the reason for his resignation may be.14. In this regard, reference to the authority in Election Commission of India v. Telangana Rostra Samithi and Anr. (2011) 1 SCC 370 is extremely useful. In the said case, the Respondent had challenged the decision of the Election Commission of India not to hold the bye-elections in respect of two Assembly Constituencies in the State of Andhra Pradesh which was set aside by the High Court. The High Court had quashed the action placing reliance on Section 151A of the Act holding, inter alia, that the said provision is mandatory especially when the vacancies had already been notified by the Speaker of the Assembly as contemplated Under Article 190(3)(b) of the Constitution. It is worth noting that the High Court had ignored the pendency of the election petitions against the candidates who had resigned on the foundation that uncertain consequences of the election petitions could not dilute the effect of Section 151A of the Act. The two-Judge Bench, scrutinizing the provisions of the Act and Article 190(3) (b), stated:“45. The Act is a complete code for the conduct of elections by the Election Commission of India appointed Under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections to Parliament and to the Legislature of every State and also of elections to the offices of President and Vice-President held under the Constitution. The provisions of Article 190(3)(b) of the Constitution have, therefore, to be read along with the provisions of the 1951 Act. Section 84 of the said Act cannot be rendered otiose by holding that all vacancies on account of the aforesaid provision of the Constitution become immediately available for being filled up by way of a bye-election. The same reasoning applies in regard to Section 151-A of the 1951 Act and its impact on the latter part of Section 84 thereof. As has been mentioned hereinbefore, a proceeding Under Section 84 has to run its full course, particularly for the purposes of Section 8-A of the said Act. The views expressed by the Division Bench of the High Court on this point cannot, therefore, be sustained.”The Court went on to say that the introduction of Section 151A did not alter the position as far as the provisions of Section 84 and, consequently, Sections 98(c) and 101(b) of the Act are concerned, although a casual vacancy may have occurred within the meaning of Section 150 of the Act. The Court made a distinction between the two categories of vacancies, namely, vacancies in which election petitions had been filed and are pending and other vacancies where no such cases were filed and pending. The Court opined that in the first category of cases, the vacancies could not have been treated to be available for the purposes of filling up within the time prescribed Under Section 151A of the Act merely because a member of the House of a Legislature of a State had resigned and the same had been accepted by the Speaker. To arrive at the said conclusion, emphasis was laid on Section 84 of the Act. In the second category of cases, the Court pronounced that the vacancies would have to be construed as clear vacancies warranting action Under Section 151A of the Act.15. A Division Bench of the High Court of Karnataka in Sri. Thomas Mates Gudinho v. Election Commission of India, New Delhi and Ors. (AIR 2002 Kant 232), while interpreting Section 151A of the Act, has opined:“13.... Section 151A no doubt seeks to ensure that no Constituency remains unrepresented for more than six months. But it is not unconditional. It is subject to two exceptions, i.e. where the remainder of the term of a member in relation to a vacancy is less than one year or where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. Further the non obstante Clause is limited in its application to Sections 147, 149, 150 and 151. The non obstante Clause does not refer to Section 84 or 98(c) or 101. It therefore follows that Section 151A will have no application if an Election Petition is pending where the prayer is not merely a challenge to the election of the elected candidate, but also seeks a declaration that the Petitioner or someone else should be declared as having been elected Under Sections 84 read with Section 101 of the Act.”Be it noted, the said view has been approved in the case of Telangana Rostra Samithi (supra).16. In the case at hand, no election petition was pending. The elected candidate tendered his resignation on 08.12.2017 and the same was accepted by the Speaker of Lok Sabha on 14.12.2017. The command of Section 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual score depicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha on 14.12.2017. It is beyond any dispute that the next General Election to Lok Sabha is in June, 2019. Therefore, the remainder of the term is not less than one year. Whether the election is to be held or not would be governed by Clause (b) to the proviso to Section 151A and we are not concerned with the same. The ground raised that the code of conduct would come into play before the elections are held in June, 2019 is absolutely sans substance as the Act does not contemplate so. It is the period alone that should be the governing factor subject to the pendency of election petition because that is not controlled by the non obstante clause. Such an interpretation is in accord with the sanctified princi

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ple of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives. We may hasten to add that the matter would be different when an election dispute is pending against the candidate that comes within the ambit and sweep of Section 84 or Section 98(c) or Section 101(b) of the Act. That not being the case, the view expressed by the High Court is absolutely impregnable.”17. In the light of what is stated above, said decision in Pramod Laxman Gudadhe (cited supra) is in apposite to the case on hand.18. As rightly contended by the learned standing counsel for respondents 1 to 3, there no materials on record, to conclude that the Election Commission of India, respondent No.1, has convened any meeting of the stakeholders. As regards the contention of the petitioner that the though the Chief Electoral Officer, Kerala (respondent No.3) has suggested to drop the bye-election, the Election Commission of India has announced the bye-election to be held in November, 2020, there is absolutely no material to substantiate the same. Election Commission has not announced any date for any election. According to the learned standing counsel for the Election Commission, a meeting has to be convened with the stakeholders, and then the Election Commission has to fix a date for conduct of the elections, and notify.19. Admittedly, as pointed out by Mr. Murali Purushothaman, learned standing counsel for respondents 1 to 3, no such meeting of the political parties and other stakeholders has been held and the Election Commission of India, respondent No.1, has not announced the date of election to Chavara and Kuttanad Assembly Constituencies. As rightly contended by the learned standing counsel, instant writ petition is premature.Instant Writ Petition No.18725 of 2020 is premature, and liable to be dismissed. Accordingly, we do so.
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