Governor K. Rosaiah’s recommendation on Thursday, following representation from AIADMK candidates, that the Election Commission (EC) consider holding the polls to Aravakurichi and Thanjavur by June 1 has raised some crucial legal questions.
The press release from Raj Bhavan cites two Supreme Court judgments that the Governor has relied on to make his recommendation: Election Commission of India vs State of Haryana (1984) and Bhim Singh vs Election Commission of India.
SC judgments
But it is clear from the two judgments that the context in which the orders were passed was completely different from why the polls were deferred in Tamil Nadu. In the case of Haryana , there was a petition seeking postponement of a by-election on the grounds of security at the height of militancy in neighbouring Punjab. In Bhim Singh case , the petitioner wanted the polls to be advanced as there was about 50-day period between notification and date of polls. Given the menace of terrorism, the petitioner contended that such a long campaign may endanger the lives of candidates and campaigners. Even then, the Supreme Court refused to entertain the petition in the Bhim Singh case and made it clear that the decision solely rested with the EC on fixing dates.
In Haryana, though the apex court accepted the stay on the election by the High Court, it stressed on the concept of “imminence” of the electoral process. The more imminent such process is, the courts should keep away from interfering and deferring, it said.
Coming to Tamil Nadu, it is quite clear that such a grave law and order situation does not exist. The polls were deferred not for security reasons but because there was rampant distribution of cash to the voters. This was perhaps why the Rajya Sabha polls have been invoked to satisfy the question of “imminence” that the Supreme Court has conceptualised. On May 21, the EC postponed the elections to the two seats by three weeks, by which time the polls to the Upper House of Parliament would have been completed.
Rajya Sabha polls
The question now was whether the equation in the Assembly was close enough to affect the outcome of the Rajya Sabha polls to the six vacancies and whether the vote of the winners of these two seats would shift the final tally. Currently, the total votes in the Assembly is 231 (one successful AIADMK MLA died before taking oath) and each candidate will need 33 votes to win. The split is 133 for the AIADMK and 98 for the DMK alliance. Since only six candidates have been nominated —two by DMK and four by AIADMK — the current equation means they would be elected unopposed.
Holding of the two Assembly polls before the RS election could make a difference only if either party decides to field an additional candidate, which looks remote.
With the ruling party having just enough votes to send four members to the Upper House, it is unlikely to field a fifth candidate. The DMK, too, may not field a third nominee, as under the system of single transferable vote, defeating one of the AIADMK candidates is improbable.
Political parties, such as the PMK, have also raised questions on the Governor’s quick response to the petitions by the AIADMK candidates. Also, the Governor met the Chief Electoral Officer on May 23, a day after the High Court passed its orders in the matter asking the EC to decide on the polling date on May 27. The Raj Bhavan has not released or elaborated on the contents of the report filed by the CEO to the Governor on May 24.
Letter to CEC
In fact, former IAS officer M.G. Devasahayam wrote to Chief Election Commissioner Nasim Zaidi to ignore the Governor’s intervention. “We would therefore call upon the EC to ignore this unnecessary intervention by the Governor without locus standi and act in the interest of democracy by countermanding/cancelling these elections and also disqualify the candidates who had resorted to distribution of money to bribe the voters,” he said in a letter.
