Keeping Constituency Unrepresented For Indefinite Period Wholly Unconstitutional: Bombay HC Directs ECI To Immediately Hold Bye-Election For Pune LS Seat
The Bombay High Court directed the Election Commission of India (ECI) to hold the bye-election for the Pune Lok Sabha Seat immediately.
The court said that an indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure.
It also added that the administrative inconvenience cannot undermine a statutory and constitutional obligation to hold an election.
The Court was dealing with a writ petition filed by a registered voter in the Pune Parliamentary constituency and Kothrud Legislative Assembly constituency.
A Division Bench comprising Justice G.S. Patel and Justice Kamal Khata said, “The word “difficulty” in Section 151A proviso sub-clause (b) is not to be read in this manner to mean some administrative inconvenience. No amount of administrative inconvenience can undermine a statutory and constitutional obligation to hold an election. The preoccupation of ECI personnel and staff cannot result in citizens going unrepresented. That is simply unthinkable. It would amount to sabotaging the entire constitutional democratic framework. We trust this is not at all what the ECI wanted to convey to us.”
"A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure.", the court added.
Advocate Kushal Mor appeared on behalf of the petitioner while Advocate Pradeep Rajagopal appeared on behalf of the respondents.
The petitioner was on the electoral roll for both the constituencies i.e., Pune parliamentary constituency and Kothrud constituency and in his petition, he challenged a ‘certificate’ issued by the ECI said to be under Section 151A(b) of the Representation of People Act, 1951 (RoPA). The said certificate said that the ECI has ‘difficulty’ in holding a bye-election to the Parliamentary Constituency-34 Pune.
Such constituency was unrepresented and the parliamentary seat for this constituency was vacant since March 29, 2023 on account of the demise of the then elected Member of Parliament for Pune, the late Shri Girish Bhalchandra Bapat. The counsel for the petitioner submitted that once a seat falls vacant for any reason, a bye-election must be notified and held. In this case, a Lok Sabha Secretariat notification was issued notifying the Pune Parliamentary Constituency seat to be vacant with effect from March 29, 2023.
The High Court in the above context observed, “… it is settled law that constituencies cannot remain unrepresented beyond a defined period. The reason is plain. In any parliamentary democracy, governance is by elected representatives. Those elected to Parliament are the voice of the people. If the representative is no more, another must be elected in his place. The people choose their representatives. A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure.” Constituency Remaining Unrepresented For Indefinite Period Unconstitutional:
The Court noted that the elected representatives are expected to echo the concerns of the electorate in its entirety and the voters cannot be denied this right which is a protection conferred by statute.
“The power of the ECI is not, in the words of the Supreme Court in Digvijay Mote v Union of India & Ors,3 unbridled. Judicial review is always permissible especially when the statutory body’s acts affect public law rights and remedies. Wednesbury reasonableness might well be one of the factors to be taken into account. The Supreme Court has echoed this approach in Election Commission of India v Ashok Kumar”, further noted the Court.
The Court said that the duty of the ECI is to ensure that an election is held and that the seat is filled and that the ECI is not concerned with whether the returned candidate will or will not be ‘effective’ in the term that remains. It added by saying that it is for the people to decide when the next election comes around and the ECI can no more ensure the effectiveness of a candidate in the remaining term than it can do so in the whole of a five-year term.
“The “certificate” impugned in this case is decidedly peculiar. It says two things. First, it says that a returned candidate would have a short tenure. That is not a valid consideration in view of the time limits that had been set out by the statute itself. It is not for the ECI to adopt a sliding scale. We find it unthinkable that several months should be allowed to pass after a casual vacancy occurs, and then an entire constituency should be told that now not much time remains and therefore there is little point in holding an election; or in other words, that the constituency might as well wait for the next general elections. That is a complete abdication of statutory and constitutional duties which we cannot possibly accept or contemplate”, it also said.
Furthermore, the Court observed that Section 149 requires an Official Gazette notification of the occurrence of a casual vacancy and Section 151A gives six months’ time to fill that vacancy. It noted that Sub-clause (b) of the proviso says that the six-month period will not apply if there is “difficulty” but it is now being solemnly suggested that the “difficulty” in not holding the elections can be kept as an internal document and need not be communicated to the electorate. The Court said that such submission must only to be stated to be rejected.
“The second ground for not holding the election is, in our considered view, one that borders on the bizarre. We are solemnly told that the ECI — that is to say, the whole of the machinery of the ECI — is far too busy and has been busy since March 2023 in preparation for the general elections to the Lok Sabha in May and June 2024 to be bothered with a bye-election for the Pune parliamentary constituency. This, we are told, is a genuine “difficulty”, said the Court.
Accordingly, the High Court asked the ECI to proceed with necessary steps for the election.
Cause Title- Sughosh Joshi v. The Election Commission of India & Anr. (Neutral Citation: 2023:BHC-AS:37487-DB)
