Dr. Aman Sharma filed a writ petition under Article 226 of the Constitution. It challenges the notification number 37/2020 issued by the Election Commission.
Brief Facts of the Case
The Election Commission of India announced biennial Rajya Sabha elections on June 1, 2020. It will conduct an election for 24 seats from 10 states. The state of Madhya Pradesh represents three seats in the upcoming election. Madhya Pradesh has 230 seats in the State Legislative Assembly. It requires 52 votes to elect a Rajya Sabha member.
The ruling political party in the state, BJP has 107 members in the House. Whereas, the opposition, Congress, has 92 members to win one of the three seats.
However, the Assembly is currently not at its full strength. There have been 24 vacancies. On 23.3.2020, 22 ministers resigned leading to the fall of the government, leading to vacancies. Two seats are vacant on account of the demise of members.
Thus, the petitioner filed a plea to postpone the elections in Madhya Pradesh.
The petition relies on Representation of People Act, 1950 to distinguish between the electoral college and Legislative Assemblies. Several sections of Representation of People’s Act, 1951 lays down functions and duties of the Election Commission of India. While, Conduct of Elections Rules, 1961 entails the procedure of calculating votes for a winning candidate. In the present case, its usage is to explain the calculation of enough quota. Rules 71 to 85 explain this quota.
Submissions of the Petitioner
The petitioner has challenged the notification regarding Madhya Pradesh Legislative Assembly. As per Schedule II of the said Act, Madhya Pradesh determines 230 seats. Due to the 24 vacancies, representation of 1/10th of the House will not be possible.
Moreover, only 207 members will cast a vote to determine sufficient quota. This will be the basis for further counting and declaration of result. Hence, there will be a deprivation of the right to vote for 24 members of the Assembly. This will lead to an unfair election.
The petitioner has distinguished the electoral procedure between States and Union Territories. Section 27 (J) of the Act provides for Rajya Sabha elections despite vacancies in case of union territories. Nevertheless, Legislative Assemblies do not come under its ambit.
Assertion of the Plea
“As the elections to the Rajya Sabha are held by transferable votes, therefore sufficient quota must be determined for counting of votes, and there will be the wrong quota unless the vacancies are filled. Therefore, the holding of polling and counting on June 19, 2020, is illegal, unconstitutional and without jurisdiction.”
Furthermore, Article 329 preventing Court interference in electoral matters cannot bar the petition. It referred to Supreme Court judgment in Election Commission of India v. Ashok (2000). It held that election commission’s action or order would be open for judicial review.
The petition also works out the math that calculates the sufficient quota, i.e. 2886. However, due to 24 vacancies, it becomes 2813 leading to erroneous counting.
Section 151 and 147 of the Representation of People’s Act, 1951 binds election commission. Elections should be held within six months of vacancies. Section 147 relates to the filling of casual vacancies in the council of states. Thus, election notification should have been issued only after filling 24 vacancies in legislative Assembly.
Chief Justice A.K. Mittal and Justice V. K. Shukla decided the present matter in WP/ 8411/ 2020. The petition stands disposed.
Conduction of the Rajya Sabha elections will be as per schedule on June 19, 2020.
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