"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, December 5, 2010

Resign, but re-election wont be so quick if an election petition is pending

The fuming Telangana issue had witnessed the resignation of 12 MLAs resulting in creation of twelve vacancies in the state legislative house. The Election Commission has issued notification to hold bye- election in all constituencies barring two where election petitions alleging corrupt practice were pending. The action of the election Commission of not holding those two constituencies was successfully challenged in the HC of Andhra Pradesh against which an appeal got filed in the SC, in ECI v. Telangana Rashtriya Samity, Special Leave Petition (Civil) No.20590 of 2010, date of judgment 03/12/10.

Section 151 (A) of the Representation of People Act, 1951, provide for filling up of casual vacancies within six months of its occasion except in two contingencies; where the life of the house is less than an year, and it is impossible to hold elections. Incidentally section 151 (A) starts with a notwithstanding clause, which expressly trumps over sections 147, 149, 150 and 151.

The SC turned down the argument of the appellant that Section 151 (A) is mandatory and the notwithstanding clause nullifies the effect of sections 8 (A), 84, 98 (c) and 101. Court used the principles of harmonious construction to read the apparently conflicting sections so as to leave none otiose.

Following the precedent in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh (AIR 1967 SC 1211), the court held that there is equal public interest in filling up the casual vacancies at the earliest and that an election petition alleging corrupt practices is permitted to reach its logical conclusion. Else it will create a situation that a person against whom corrupt practices are alleged and an election petition filed could resign the post thereby creating a vacancy requiring re-election, nullifying the scope of a finding of corrupt practice which will be costlier; disqualification for the term plus six years.

There is public interest involved in filling up the vacancy of a democratic representative, but so also is the case in seeing that none gets elected and retain the seat using corrupt means. Therefore, for the court, it would be incorrect to make 151 (A) nullify the effect of sections against corrupt practices. Had that been the intention of the legislature the notwithstanding clause would have been extended so. Since there is no vacancy existing, the mandate of section 151 (A) does not have any effect.

Tail end: Despite the best effort of both courts to quickly dispose off the petition and appeal, the Election Commission by its action has created a deadlock. The resignation occasioned in February 2010, the HC delivered its judgment on June 2010 and the SC determined the appeal in December 2010. The Election Commission has conducted elections in the two contested constituencies on 27th July, 2010!

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