Bombay High Court
Bombay High Court

Mumbai: Observing that the interests of the voters are paramount, the Bombay High Court on Monday held by-elections cannot be stalled just because an election petition is pending before a court of law. The HC said that the essence of democracy is the right to vote and there is no fundamental right to an electoral seat.

The ruling was pronounced by a bench of Justices Satyaranjan Dharmadhikari and Gautam Patel while dismissing a bunch of petitions, filed by runner up candidates, seeking to quash a notification issued by the State Election Commission (SEC).

The SEC had issued this notification to conduct by-elections in two constituencies Kandivali and Andher following the disqualification of the elected corporators – Rajpati Yadav and Murji Patel.

Both the corporators were disqualified for filing false documents pertaining to their castes as the two seats were for reserved categories.

The runner-up candidates contended that the SEC cannot announce a by-poll as their election petitions, for declaring themselves as the winners, are yet to be decided by the Small Causes Court.

Trashing their contentions, Justice Dharmadhikari said, “We cannot stall the democratic process merely because an election dispute or petition is pending.

Such a pending dispute does not mean that the casual vacancy of a seat and also the enabling powers of the SEC to fill up the vacancy by holding a by-election, has to await the result of the election petition.”

“Once a person, elected by the voters is disqualified, they must be given an opportunity to substitute him. If one is disqualified, naturally the fresh election must follow,” Justice Dharmadhikari said.

Justice Dharmadhikari further said that the object of a by-poll is to give an opportunity to the residents of the ward to elect another representative.

“No ward can be left unrepresented or without any elected representative because he or she alone can espouse their grievances and take up their causes and place them before the House when the House is convened,” Justice Dharmadhikari observed

The court further said that if the contentions of the runner-up candidates are accepted then it would mean that the constituency concerned would be deprived of a representative and would continue to be deprived until the election petition is disposed of.

“One has to balance the hopes and aspirations in a democratic set up of the public. The voters already made their choice, but the elected person was later disqualified then it does not mean that the voters must suffer,” Justice Dharmadhikari said.

In a separate but concurring judgment, Justice Gautam Patel said that the interests and needs of the citizens are paramount.

“The interests and needs of citizens must be served. They must receive preference and priority over all claims to being returned or winning a seat. There is no fundamental right to an electoral seat.”

“The essence of a democratic system of governance is the right to vote, and to select a representative. Voters are not to be kept on hold while litigations wend their way through the legal system at a glacial pace,” Justice Patel added.

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