Observing that people of a constituency cannot go unrepresented for a long period of time as it would unconstitutional, the Bombay High Court has directed the Election COmmission of India (ECI) to “immediately” hold by-elections for the Pune Lok Sabha constituency which fell vacant after the death of Member of Parliament (MP) Girish Bapat on March 29.
HC Critical of ECI's Stand
The high court also termed as “bizarre and wholly unreasonable” the ECI’s stand to not hold elections as it was busy with other polls including the preparatory activities for the 2024 Lok Sabha elections. It quashed the certificate issued by ECI in August not to hold a bypoll to the Constituency.
“In any parliamentary democracy, governance is done by elected representatives who are the voices of people. If a representative is no more, another must be put in place. People can't go unrepresented. That is wholly unconstitutional and is fundamental anathema to constitutional structure,” noted a division bench Justices Gautam Patel and Kamal Khata on Wednesday.
Petition Against ECI's Certificate
The HC passed the order while hearing a petition filed by a Pune resident Sughosh Joshi, through his advocates Kushal Mor, Dayaar Singla and Shraddha Swarup, challenging a certificate issued by ECI to not hold by-election to the Constituency.
According to the ECI, it would not hold the by-polls on two grounds – one that it was busy with other polls including the preparatory activities for the 2024 Lok Sabha elections and the second that even if the Pune by-polls are held the elected representative would get a very short tenure.
Court's Dismissal of ECI's Grounds
Dismissing both the grounds, the bench said that it was abdication of constitutional duties and obligations which cannot be accepted. “The ECI is not only vested but charged with the duty and obligation to hold elections and see to it that any vacancy is filled in. The ECI cannot let a constituency remain unrepresented. Voters cannot be denied this right,” the HC said.
The judges noted that the term of the Lok Sabha ends in June 2024 while the Pune constituency seat has been lying vacant since March this year. “The ground that the entire machinery of the ECI was busy with the preparatory activities for the 2024 Lok Sabha elections borders on the bizarre,” the court added.
Scrutiny of Election Commission's Decision
It added that the difficulty expressed by the ECI to not hold elections was not “genuine difficulty” and was “wholly unacceptable”. It added that administrative difficulty cannot be termed as genuine difficulty.
The court said: “No amount of inconvenience can undermine the statutory and constitutional obligations and duties cast upon the ECI. This is something unthinkable and would amount to sabotaging the constitutional framework.”
The judges remarked that the election commission’s powers are not expemot from judicial review especially when the same affects public law and interest.
The court then quashed the ECI’s certificate and directed the ECI to hold the elections immediately.
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