Don’t issue Rampur bypoll notification till November 11: Supreme Court to Election Commission

Updated on Nov 10, 2022 04:31 AM IST

A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said, “The Additional Sessions Judge, Rampur shall prepone hearing on stay of conviction from November 15 and take it up on November 10. The application shall be disposed on the same day.”

Samajwadi Party leader Azam Khan. (PTI)
Samajwadi Party leader Azam Khan. (PTI)
ByAbraham Thomas, New Delhi

The Supreme Court on Wednesday gave Samajwadi Party leader Mohammad Azam Khan an opportunity to salvage his Rampur assembly seat by arranging a fast-track hearing on his application for stay of conviction before a Rampur court on Thursday, and ordered the Election Commission to hold back the gazette notification on the Rampur by-election for a day.

If Khan gets an order of stay, he will remain in contention to contest for the upcoming bypoll to the Rampur seat on December 5.

A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said, “The Additional Sessions Judge, Rampur shall prepone hearing on stay of conviction from November 15 and take it up on November 10. The application shall be disposed on the same day.”

The bench, also comprising justices Hima Kohli and JB Pardiwala, added: “The issuance of Gazette notification for declaring the election schedule for Rampur constituency may be issued on or after November 11, depending on the outcome of the application on stay of conviction.” The bench clarified, “In the event he (Khan) fails, EC can proceed with issuance of notification.”

The court passed the order in the interest of providing “fair process” to the petitioner (Khan), who was denied an opportunity to appeal to the sessions court against his conviction.

Khan was convicted and sentenced to three years in prison in a 2019 hate speech case on October 27. The next day, the secretariat of UP assembly declared his seat vacant. On November 5, EC announced the schedule for by-election to several assembly seats including Rampur.

On Monday, when Khan’s petition was first heard by the top court, his lawyer, senior advocate P Chidambaram, raised the plea of discrimination to suggest that the assembly seat of Khatauli falling in the same state where the sitting BJP MLA stood convicted and sentenced to two years imprisonment in the 2013 Muzaffarnagar riots case. Despite the conviction order of October 11, neither the UP assembly declared it vacant as a result of which EC could not hold elections, Chidambaram said.

EC was represented in court by senior advocate Arvind Datar, who suggested that the schedule for elections is to be notified on Thursday. He stated that EC is under a mandate to conduct elections to a vacant seat latest within a week. Advocate Nizam Pasha, representing Khan, countered this argument by presenting two instances from Bihar where by-elections to Kurhani and Mokama were announced more than a month after the seat was declared vacant.

The bench then told Datar, “Allow him some reasonable time, otherwise it will be seen as selective action based on political affiliation of the convict.”

Datar said that if Khan is able to secure a stay on conviction, he has chance to file his nomination by November 17. But the court wished to know if the stay on conviction would operate retrospectively restoring him as MLA of Rampur, thus making the election process redundant. “If his conviction is stayed, there is no question of fresh elections at all. Once conviction is stayed, the stay dates back to the date of conviction as disqualification is a consequence of conviction,” the bench said.

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