By – Amba Charan Vashishth
In retrospect, it is now clear that last year the Election Commission (EC) failed to perform its constitutional duty to conduct bye-elections to fill the three casual vacancies in the Karnataka assembly as per the word and spirit of law. Considerations which overwhelmed its decision not to hold bye-elections within time remain unconvincing afterthoughts.
On March 12, 2011 through its Press Note No. ECI/PN/21/2011 (eci.nic.in/eci_main/press/current/Pn12032011.pdf), EC announced the polling schedule for bye-elections to the three assembly constituencies of 185- Chennapatna, 103- Jagalur (ST) and 147-Bangarapet (SC) which, it admits, had “to be completed before April 13, April 18 and April 19, 2011”. within six months from the date of occurrence of vacancies as per the provisions of Section 151 of the R. P. (Representation of Peoples’) Act, 1951. It advanced the argument that these “bye-elections were decided by the Commission to be held after revision of electoral rolls with reference to 01.01.2011 as the qualifying date so that all young voters who attain the age of 18 years as on 01.01.2011 could also participate (in) these elections”.
But this logic boomerangs on the EC in the face of the fact that on January 12, 2011 through its Press Note No. ECI/PN/1/2011 (http://jharkhand.gov.in/ceo/PressNote/Press%20Note.pdf) the EC notified bye-elections to fill the casual vacancies in the State assemblies of Jharkhand, Madhya Pradesh and Gujarat, with polling on February 12 and counting on February 17. On that very day (January 12) the three casual vacancies in the Karnataka legislative assembly stood very much notified to it. EC, if it wanted, could have had these bye-polls simultaneously with those in other States on February 14. If there was no hindrance in holding bye-elections in other States, there was hardly any to withhold the same in Karnataka.
EC contradicts itself
In the same Press Note dated March 12, 2011 in which EC advanced the excuse that in Karnataka “bye-elections were decided by the Commission to be held after revision of electoral rolls with reference to 01.01.2011 as the qualifying date”, it contradicted itself by later stating: “The delimited electoral rolls in respect of these Assembly Constituencies in the State of Karnataka, with reference to 1.1.2011 as the qualifying date, have been revised and published on 10.1.2011.” Thus the whole justification advanced not to hold these bye-elections on February 14 fell flat and appeared nothing more than an afterthought.
For the past about two decades, it had been customary for the EC to hold bye-elections to all the casual vacancies in State assemblies and Lok Sabha which had been notified to it till the time of announcement of the schedule of general or bye-election to any State assembly or Lok Sabha. But, of late, a perceptible change was visible to the eye. The EC seems to have now become selective and, to an extent, subjective and choosy in deciding which bye-election to be conducted immediately and which later. The bye-elections ordered by it to be held on February 14 and the Karnataka bye-elections on April 9 stood in contrast.
EC omissions and commissions
The series of acts of omission and commission by the EC in respect of Karnataka bye-elections did not stop here. It was trying to indulge in a wrong interpretation of the provisions of Section 151A of RP Act which calls for only “a bye-election for filling any vacancy…shall (emphasis added) be held within a period of six months from the date of the occurrence of the vacancy”. Law leaves no discretion with EC not to discharge its constitutional obligation to hold bye-elections within the time-limit. It needs to be stressed that the law does not speak of “polling” but stresses the objective of “the filling of any vacancy”. The formality of polling and counting of votes is just the means to realize that objective. Therefore, attempting to appear to be pious by claiming that the Commission “decided that the actual polling ….be done within the stipulated six months” looks ironical and a vain attempt at concealing its own shortcomings and embarrassment.
Referring to provisions of clause (b) of the said Section 151A of RP Act, EC claims that “the Central government has concurred in with the views of the Election Commission” wherein it explained “the reasons for not conducting the counting of votes”. It needs to be stressed again that law nowhere speaks of “counting of votes”. The EC argument here too is misplaced and not legally tenable under the circumstances. The said Clause (b) provides: “The Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye- election within the said period” In the face of the facts and the circumstances, there was hardly any justification for the EC to certify that “it is difficult to hold the bye-election within the said period”.
Further, the logic for holding the polling “within the stipulated six months” but counting of votes to be done simultaneously on 13.05.2011 alongwith the counting of votes for the five Legislative Assemblies “so that the voters of these States/UT may not get influenced by the result of the bye-elections of Karnataka State Legislative Assembly too “is a specious one, far fetched, not tenable and, to an extent, funny.
People’s memory may be short but not that short as not to recall that in 1998 the EC announced the schedule of elections to the 12th Lok Sabha and five State Assemblies and simultaneously bye-elections to fill 21 vacancies in 11 State Assemblies. Counting of votes for all the Lok Sabha and assembly seats was fixed for March 8. But not to fail in its constitutional duty to constitute the new Meghalaya assembly within six months, the then EC made an exception by preponing the counting of votes in Meghalaya for all the Assembly constituencies and its two parliamentary constituencies on February 23. If the voters in the rest of the country, including the adjoining States, could then “not get influenced by the results” for all the Meghalaya State assembly seats and its two parliamentary constituencies, how would the three Karnataka bye-elections do so in far flung States of Assam, West Bengal and others?
EC Press Note dated January 12 states: “The Government of Jharkhand has brought to the notice of the Commission that the present Chief Minister of Jharkhand took over as CM on 11.09.2010 and, in view of the constitutional requirement, he is required to become a member of the State Legislative Assembly on or before 10.03.2011.” Thus the EC itself lays stress on the unavoidability of having the election (not only “polling” but counting too) within six months. On this very analogy the EC was duty bound legally and constitutionally to fill the casual vacancies in Karnataka assembly too by April 13 to 19, 2011.
Failure to fill the three casual vacancies in Karnataka assembly within the stipulated six months was an apparent dereliction of duty on the part of the Election Commission without valid reasons. This act of omission and commission by EC, deliberate or inadvertent,did certainly resulted in helping or harming, directly or indirectly, the electoral prospects of one or the other political parties or candidates in the State.
By not filling the three casual vacancies in Karnataka assembly within the mandatory six months, EC has created a legal and constitutional flaw in which the three casual vacancies in Karnataka assembly remained unfilled beyond six months. This deficiency can be rectified not by an executive diktat but by the Parliament of India alone.
The writer is a Delhi-based political analyst and commentator.