All eyes on Election Commission over potential bypoll in Wayanad; experts raise doubt over legality

Experts say the Election Commission should be a little cautious in the Congress leader’s disqualification case as the Lok Sabha notification has certain ‘legal infirmities’ 

March 25, 2023 12:03 am | Updated 09:10 am IST - New Delhi

Congress leader Rahul Gandhi meets students during his visit to a school in his constituency, Wayanad, on March 21, 2023. Photo: Congress via ANI

Congress leader Rahul Gandhi meets students during his visit to a school in his constituency, Wayanad, on March 21, 2023. Photo: Congress via ANI

With the Lok Sabha Secretariat on March 24 disqualifying Congress leader Rahul Gandhi as an MP, all eyes are now on the Election Commission (EC) which can now declare elections to his Wayanad constituency as it has been deemed vacant.

The notification declaring Mr. Gandhi’s disqualification as an MP has been marked to the EC, as well as the Chief Electoral Officer of Kerala, among others. Thus the commission can take cognisance of the same and proceed with announcing election in Wayanad, sources in the Lok Sabha Secretariat said.

Going by recent precedents, the EC is expected to announce the election within a week. In the case of Lakshadweep MP P.P. Mohammed Faizal, the EC announced byelection to his constituency on January 18 after he was disqualified on January 13 while in the case of Uttar Pradesh strongman Azam Khan, election to his Rampur constituency was announced on November 5 following his disqualification by the U.P. Assembly on October 27.

It is pertinent to note here that in the Azam Khan case, after the EC issued the election notification, the Supreme Court directed it to wait for the appeal filed by Mr. Khan in a higher court to be heard. Subsequently, the EC postponed the notification for the byelection, which was only held after an additional sessions court rejected Mr. Khan’s appeal.

Similarly, in the case of Mr. Faizal, the top court had asked the EC to take cognisance of the Kerala High Court order overturning his conviction and thus the commission had to withdraw the poll notification for the Lakshadweep Lok Sabha constituency.

It remains to be seen if in Mr. Gandhi’s case, the commission waits for the decision of an appellate court. According to the Representation of People Act, the disqualification stands suspended if a higher court overturns the conviction.

Experts also say the EC should be a little cautious in Mr. Gandhi’s disqualification case as the Lok Sabha notification has certain “legal infirmities”.

According to former Lok Sabha Secretary General P.D.T. Achary, the notification mentions that Mr. Gandhi is disqualified, but does not mention that the Wayanad seat has fallen vacant. Ideally, EC can issue a notification only when a seat has been announced as vacant.

A former official of the Lok Sabha Secretariat, who did not wish to be named, also pointed out that according to Article 103 of Constitution, it is the President of India who decides on disqualification and then informs the EC and hence the LS Secretariat notification can itself be challenged by Mr. Gandhi.

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