March 25, 2021
After trying to meet the members of the Election Commission of India from this morning, the appointment that was sought after could not materialize. But, given the importance of the subject matter we are releasing the letter sent by email addressed by Nilotpal Basu, Polit Bureau member of Communist Party of India (Marxist) to the Chief Election Commissioner, Election Commission of India on its decision to keep biennial election for three seats to the Council of States in Kerala in abeyance. We are releasing the text of the letter for publication.
March 25, 2021
Dear Shri. Sunil Arora ji,
We are shocked at the abrupt announcement of the Election Commission of India’s decision to keep the proposed notification and schedule for biennial election for three seats to the Council of States in Kerala on 24th March in abeyance(through the press note No.ECI/PN/36/2021). In fact, we are also in receipt of the formal notification of the Returning Officer, Shri. S.V. Unnikrishnan Nair, for the said election.
Your press note mentions a reference received from the Ministry of Law and Justice, Government of India as the basis for putting the process of the election which was clearly underway. However, the press note of the ECI does not elaborate the grounds which the Commission finds so urgent to put the process of election in abeyance after the formal notification.
We wanted to pointedly question the bonafides of the Government of India to directly intervene in the process of elections whereas no political party or individuals had expressed any disagreement with the authority of the ECI, much less the details of the notification for elections.
We are afraid that this appears to be completely in contravention of the immense powers of the Election Commission under Article 324 and actually amounts to the relinquishing of its independence. The exercise of the powers of the ECI under the rules of the Representation of Peoples Act under Section 30 or Sub-section 1 of Section 39 is clearly a denial of the letter and spirit of the Representation of the Peoples Act. Like any other Constitutional authority, the exercise of powers under Article 324 has to be effected under the provisions of the Act for the purpose of holding elections.
It is clear that under section 12 of the Representation of the People Act,1951 a notification is required to be issued within 3 months of the expiry of the term of a retiring member. Although this section( proviso) says that no notification shall be issued more than 3 months prior to the date of expiry of the term the intention is to hold the election before the expiry of the term. The provision relating to the election of Lok Sabha too is worded the same way (section14). Elections to that House are held before the term expires. Only in the case of a casual vacancy election can be held within 6 months after the occurrence of the vacancy. (section151A)
The words "for the purpose of filling the seats of members of the Council of States retiring on the expiration of their term of office" make it clear that the notification needs to be issued before the expiry of the term. The word "retiring" indicates that.
Therefore, it is clear that the ECI is acting at the behest of the government. ECI is not transparent and does not bring into the public domain the reasons for which the Commission finds the reference of the government so compelling.
We may further point out that the notifications for similar election held in Kerala in March 2016, despite the assembly election was notified on 19th March 2016, went ahead as scheduled. Therefore, going by the precedent of the Commission’s exercise of powers under similar circumstances does not justify the decision of the Commission in the present instance.
It is further necessary to point out that since assembly elections are already underway including that in Kerala, the Model Code of Conduct is very much under force. Therefore, there is no way that the government of India can interfere with the process initiated by Election Commission and no ground for the ECI to entertain such a reference which is contravening with the rules
for holding the elections. In effect this brazenly compromises the independence of the ECI. It is for the Commission’s wisdom to explain what such a compromise would imply for the holding of free and fair elections and the credibility, moral and Constitutional authority of the Commission.
Finally, the Kerala legislature has the sovereign powers to elect representatives to represent it in the Council of States with the expiry of tenure of the current incumbents. The Constitution is explicit on the sovereignty of the state legislature and the current decision is a clear violation of that power. Therefore, in all earnestness we urge the Commission to reverse the decision of putting in abeyance the process of elections to Rajya Sabha from the state of Kerala. For the sake of safeguarding the assiduously built reputation of the Election Commission as a truly independent Constitutional authority, the imperative is paramount.
Anticipating a positive response in safeguarding the Constitutional rule in the Country.
Member, Polit Bureau
N.B.: All referred documents are annexed herewith.