Thread by @SaketGokhale

The Congress has a golden opportunity to drag the Election Commission to the Supreme Court over the postponement of the Karnataka by-polls.

I'm surprised that no one in the entire day today has checked the law on postponement of elections.

So here it goes:

(1/10)

Elections are governed under Art. 324 of the Constitution & the Representation Of The People Act, 1951.

Clause 150 in the Act pertains to by-polls in State Assemblies and Clause 57 pertains to adjournment of polls in emergencies.

Now, let me breakdown simple why it says. (2/10)

Clause 150 says that elections to any state Assembly constituency can be announced by the EC by a notification in the official Gazette. This essentially means that the EC proposes by-poll dates & the President of India approves it.

It says NOTHING about postponement. (3/10)

Clause 57 says that elections can be adjourned only in cases such as riots, open violence, or a natural calamity.

Again, it says nothing about the powers of the EC to arbitrarily adjourn polls after issuing a notification. (4/10)

Now the disqualification of the rebel MLAs by the Speaker is VALID unless and until the Supreme Court either

(a) issues a stay order on their disqualification or
(b) issues a verdict in their favour

Neither of these 2 things happened in the court today. (5/10)

Now, the announcement of polls by the EC is technically a "proposal". It becomes official only when published in the Gazette i.e. approved by the President.

Similarly, any cancellations or abrogation of polls can happen ONLY with the consent of the President. (6/10)

When the lawyer appearing for the EC was asked about postponing the Karnataka by-polls, he said "we will do it".

This essentially means the EC took the President's approval for granted without consulting him.

The EC cannot take this call with approval of the President.

(7/10)

The cancellation of the Karnataka by-polls is, therefore, illegal.

Without a stay order from the SC & sans the approval of the President (in which he needs to spell out specific reasons for the cancellation/postponement), the EC has no locus standi to postpone bypolls.

(8/10)

Once a poll is notified by EC, it has to be conducted unless an emergency (under clause 57) arises.

The SC has NOT stayed the disqualification of the MLAs. The EC told the SC that it will postpone the by-polls WITHOUT the approval of the President of India.

(9/10)

The EC must state the grounds that give it the power to postpone by-polls arbitrarily.

Legally, it has none.

That's why the EC's decision must be challenged in the SC if we still really wish to protect whatever little is left of the concept of "free and fair elections". (10/10)

PS: Typo in tweet 2. It should say “let me break down simply what it says”.