To,

Shri. N. Gopalaswami
The Chief Election Commissioner
Election Commission of India
Nirvachan Sadan
New Delhi.

Sub: Proposed unconstitutional call by several political parties to its MP’s and MLA’s to abstain from voting in the forthcoming Presidential Elections scheduled on July 19th, 2007.

Sir,

The election for the President of India is to be held on July 19th, 2007. A group of political parties has given a call to all its members in the Electoral College to abstain from casting their votes. The direct consequence of such absence is not merely that the number of votes polled in the elections will be substantially less than the size of the electoral college, but the constituents represented by the abstaining Members of Parliament and Legislative Assemblies which elected members of the several political parties would go un-represented. Such a move to deny representation to a large section of the electorate would directly be contrary to parliamentary democracy and the principle of representation of citizens through elected members.

The President of India is not directly elected by the people of India. There is no manner of doubt that it is the people of India who indirectly elect the President of India. Article 54 of the Constitution of India provides that the President of India is elected by an Electoral College comprising of elected members of both Houses of Parliament and elected members of Legislative Assemblies in the States. The manner of election is provided in Article 55. Article 55(2) provides for the weightage to be given to each member of the Legislative Assembly of a State. This weightage as per the provisions of the Constitution is based on a formula, which directly takes into account the population of each State. The Members of the two Houses of Parliament have exactly the same weightage as are collectively given to members of the Legislative Assemblies of States. Since the weightage to be given to the votes cast by the members of Legislative Assemblies and Members of Parliament is directly relatable to the population of the State, it is the people of India who through their elected MPs and MLA’s elect the President of India. It is, thus, obligatory for each MP and MLA to discharge his function under the Constitution of India. An importantfunction of every elected member of these Legislative bodies is to elect the President of India in accordance with Article 54 and 55 of the Constitution of India.

The weightage given to the vote of each MLA is calculated by dividing the total population of each State by the number of seats in the Legislative Assembly of that State and further sub-dividing the same by 1000. The weightage attributable to the vote of a Member of Parliament is calculated by dividing the total weightage of votes collectively in all the States by the number of Members of Parliament of both Houses. It is thus clear that if an MP or MLA abstains from casting his vote, then to that extent the constituents of that State go un-represented in the election of the President. There cannot be a greater betrayal of the electorate than a willful and deliberate refusal by an elected legislator to represent his constituents/voters in their right to elect the President of India through him. It is a failure by an elected representative to discharge his constitutional function in electing the Head of State.

It appears from the views of some elected representatives of several political parties that they are willing to cast their votes but are being prevented from doing so because of pressure of their political parties to
abstain. A compulsion is being sought to be created by these political parties  against its own members in order to prevent them from representing their electorate. Any member who breaches this decision could be liable for disciplinary action within his political party and also under para 2(1)(a) of the Tenth Schedule of the Constitution as the conduct may be deemed to be “voluntarily” giving up the membership of the political party. Sub-para (b) of para 2(1) also makes a member liable for disqualification on the ground of defection if he votes or abstains from voting in such House contrary to the direction issued by his political party. It is nowhere indicated in para 2(a) or (b) of the Tenth Schedule that the disqualification will occur only for conduct on the floor of the House and not outside. Para 2 of the Tenth Schedule treats either of such conduct at par. The position, which, thus appears is that these political parties comprising have issued a direction to all these MPs and MLAs to abstain from voting. Any of these members who violates this direction will be liable for penal and coercive actions. The MP or MLA while thus abstaining would be breaching his constitutional obligation of representing his voters under Article 54 and 55 for election of the President.

It would be further relevant to note that every political party requires a registration with the Election Commission of India under Section 29A of the Representation of People Act, 1951. Section 29(a)(5) of the Act requires a party to bear true faith and allegiance to the Constitution of India as by law established. Every MP or Member of Legislative Assembly both at the time of his nomination as also at the time of his being sworn in, takes an oath of affirmation to the Constitution of India. A political party thus is not entitled to direct its members to breach their constitutional obligation. If it does so, it must be checked by the Election Commission of India.

There is thus a clear conflict between the constitutional obligation of each member to represent his constituents and his political responsibility to accept the discipline of his political party even if the same is contrary to the constitution. It is, therefore, necessary that in its powers of superintendence, direction and control of elections, the Election Commission should step in under Article 324 of the Constitution and clarify the position.

It is, therefore, necessary that the Election Commission in exercise of its jurisdiction under Article 324 at the pre-election stage itself should step in and clear this doubt that an MP or MLA in the performance of his constitutional obligation under Article 54 and 55 to cast his vote acts purely in his individual capacity as an elected representative and not as a member of a political party. It may be further clarified that any decision or direction of a political party to its MP’s or MLA’s to abstain from casting and performing the constitutional obligation to vote in the elections would be unconstitutional and an MP and MLA is entitled to ignore the same. The Election Commission of India may, therefore, consider passing appropriate order(s) under Article 324 of the Constitution restraining Political Parties from issuing any direction to its MP’s MLA’s to abstain from voting in the forthcoming Presidential Elections. Any such direction if already issued by any Party deserves to be ordered as unconstitutional and non-est.

Date :
New Delhi