E-Paper
ECI is duty-bound to conduct bypoll in Pune: HC
A division bench of the Bombay High Court comprising Justices GS Patel and Kamal Khata was hearing a petition filed by a Pune resident seeking to direct the election commission to hold by-poll elections, as six months had already lapsed since Bapat’s death on March 29, 2023
Mumbai: The Bombay High Court on Wednesday directed the Election Commission of India (ECI) to conduct by-poll in Pune for post made vacant following the death of MP Girish Bapat in March this year. The court further quashed the certificate issued by the ECI not to hold a bypoll in the constituency.
“In any parliamentary democracy, governance is done by elected representatives who are the voices of the people. If a representative is no more, another must be put in place. People cannot go unrepresented. That is wholly unconstitutional and a fundamental anathema to constitutional structure,” the court said while passing the order.
A division bench of the Bombay High Court comprising Justices GS Patel and Kamal Khata was hearing a petition filed by a Pune resident seeking to direct the election commission to hold by-poll elections, as six months had already lapsed since Bapat’s death on March 29, 2023.
Through an RTI, the petitioner later discovered that the ECI had decided not to hold any by-elections for the post in accordance with subsection (b) of Section 151A of the Representation of the People Act (ROPA).
As per the provisions of ROPA, the ECI is not bound to conduct by-poll elections in a constituency if the remainder of the term of a member in relation to a vacancy is less than a year or if the ECI, in consultation with the central government, certifies that it is difficult to hold elections within the said period. In this instance, ECI had taken the stance that it was difficult to conduct the elections at such a time on account of being vexed with the preparations for the 2024 Lok Sabha elections. It had further submitted that since there is less time for the Lok Sabha elections, there is very little point in holding the elections.
The court, however, refused to accept the ‘difficulty’ put forward by the commission. According to it, the duty of the ECI is to hold the elections; it is not concerned with whether the returning candidate is effective during his term.
“It is not for ECI to adopt a sliding scale, and we find it unthinkable that several months could go past and then the entire constituency be told that now time does not remain and the constituency might as well wait for the next general elections. We cannot possibly accept or contemplate this. Correspondingly, the duty of ECI is to ensure that an election is held and the seat is filled. ECI is not concerned whether returned candidates will be effective in the term that remains,” the court said.
Further, the argument that ECI has been far too busy and can’t be bothered with a by-election is untenable. The word “difficulty” can’t be read to mean administrative difficulty. “No amount of administrative difficulty can undermine a statutory obligation,” the court said. This is the sabotage of the democratic framework, he added. A genuine difficulty, according to the court, is a genuine law and order situation. Preoccupation with the election is a wholly unacceptable stance, the court said.
The court further pointed out that it had no difficulty conducting elections to the assembly of five states during October and November. It also pointed out the by-election in Jalandhar that was conducted recently and expressed its concern about why the same couldn’t be conducted in Pune.
Additionally, it questioned the validity of the certificate that the ECI issued cancelling the elections. The certificate, according to the court, cannot be a private communication, as the citizens have a right to know why they are left unrepresented. An electoral college can’t be left in a sense of wonderment about whether the election is going to be held or not, the court added.
