‘People cannot go unrepresented’: Bombay HC directs EC to immediately hold bypoll for Pune Lok Sabha seat

“Business of ECI staff cannot result in citizens going unrepresented and that is unthinkable and it would amount to sabotaging entire constitutional framework, which we trust that is what even ECI did not want,” the bench held.

“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 cannot go unrepresented. That is wholly unconstitutional and is fundamental anathema to constitutional structure,” the bench observed.

A division bench of Justice Patel and Justice Kamal R Khata was hearing a plea by Pune resident Sughosh Joshi against the ECI certificate. The plea was argued through advocates Kushal Mor, Shraddha Swarup and Dayaar Singla, who claimed that as per Section 151A of the Representation of People Act, 1951, the vacancy should be filled through a bypoll within six months; therefore the same should have been held by September 28.

Joshi claimed that the constituents had no voice in Parliament over the past few months, especially for issues related to significant delays in several developmental projects in Pune

The high court, on December 7, said it prima facie did not concur with the reasoning given by ECI that in case bypolls are held, the returned candidate would hardly have three-four months of work as MP and it would also affect the preparatory activities for the 2024 Lok Sabha elections.

“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 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 bench noted.

The fundamental principle in which the ECI must function is the right to representation, the court said, adding that it cannot let a constituency remain unrepresented beyond the prescribed period.

The bench also noted that the ECI’s stand was inconsistent as it had itself held byelections for several Legislative Assembly constituencies and Lok Sabha constituencies since the Pune seat became vacant. “Neither administrative reasons nor burden on exchequer are reasons to refuse byelection,” the bench noted.

It noted that the term of the Lok Sabha ends on June 16, 2024, and the Pune constituency became vacant on March 29, a little over a year, and ECI could not take exception of less than a year’s time remaining for the term of the returned candidate.

“Only relevant date is the date on which vacancy actually arises. Any other date be either random or subject to some level of ad-hocism which is unacceptable. One can never predict with certainty the date on which the code of conduct will start operating or election results will be announced but the date of vacancy is written in stone and there can be no ambiguity,” the bench said.

The high court allowed the plea and declared the certificate issued by ECI under clause (b) of the proviso to Section 151A of the Representation of People Act, 1951, to not hold bye-election as unconstitutional. Ordering immediate election, it asked ECI to forthwith refrain from acting on the impugned certificate.