Libertatem Magazine

Election in the Rajya Sabha Must Be Before Retirement, The Constitution Does Not Support Leaving Vacant Seats in the Legislative: Kerala High Court

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The Court, on April 12, 2021, by honourable Justice PV Asha, pronounced judgement regarding the Election Commission’s decision on holding the election for the seats in Rajya Sabha, which would be vacant soon. The Court replied, “…the intention is not to keep the seats unfilled but to complete the process of the election before the retirement of the members, to have the full strength of members in the Upper House to represent the State.”


Two writ petitions were filed related to the election of the three seats becoming vacant in the Council of States. One petition was filed by the Petitioner and the other by a sitting member of the Kerala Legislative. The judgement was combined as a response to both the petitions that were of identical nature.

The state of Kerala’s council has nine members, of whom three members were retiring by April 21, 2021, completing six years. The Election commission issued a press releasing dates regarding each election process, from the nomination to the date of completion of the election. On the same day, another press was released, holding the election date to reschedule it until further notice. 

A petition was filed challenging this decision of the Election commission on halting the elections for the seats in the Rajya Sabha.


The Petitioner contended that their constitutional right as members of the legislative assembly, including him, to use their franchise to elect a member of their choice to the council of state would be affected as the term of the present assembly would expire in May 2021. Apart from that, he would also lose his statutory right to exercise his vote to a person of his choice, and postponing the dates would affect this. Section 12 of the Representation of People Act 1951 intends to fill up the ‘retiring’ seats on the expiration of their term. The candidates for the chairs should be selected and finalized before the members’ retirement as Article 83 provides that the Council of States is a continuing body.

Court’s observation

The Court agreed to the Petitioner stating that the constitution does not support keeping a seat vacant. The legislative should complete the elections before the retirement of the members. Even though the commission has the power regarding elections, maintaining vacant seats will not be constitutional, and the lack of reasoning for such a decision cannot be justified.

The Court agrees that the commission is an independent body, and therefore it cannot be influenced. However, such a situation will only lead to an abhorrent condition where the candidate would be nominated and elected by two different bodies.

Court’s decision 

According to section 39, the Court states that the election process would take 17 (7+1+2+7) days to complete. Responding to the petition, the Court said that the order does not embargo under Article 392(b) of the constitution. The Court disposed of the case asking the commission to take appropriate steps according to the law.

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