Supreme Court stays Bombay HC order asking EC to immediately hold Pune Lok Sabha seat bypoll

“The moment a vacancy arises, EC must act with alacrity to fill it up,” the CJI said adding the court will lay down the law on this.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, however, stayed the Bombay HC order given that there are only a few more months left for the 2023 parliament elections.

This means the bypolls for Pune Lok Sabha seat cannot be held until SC decides the matter in March or April. The 2024 Lok Sabha elections are likely to be held in April or May, this year as the term of the present House ends on June 16.

The CJI Chandrachud-led bench said the term of the present remainder of the Lok Sabha will come to an end and the provisions of Section 151 of the 1951 law will ‘fall for consideration’ before the apex court, therefore it was required to issue notice to the respondents in the appeal.

“There shall be a stay on the impugned HC judgement dated December 13, 2023. We will list it most probably in March or April and thereafter lay down the law,” the apex court noted.

On December 13, 2023, the Bombay High Court bench led by Justice Gautam S Patel had quashed the certificate issued by the ECI under clause (b) of the proviso to Section 151A of the Representation of People Act, 1951, to not hold bypoll ‘as unconstitutional’.

The Bombay HC order came on a plea by Sughosh Joshi, a registered voter in the Pune parliamentary constituency. Joshi had challenged a “certificate” dated August 23, 2023, issued by the ECI, saying that the poll “certificate” impugned in this case is decidedly peculiar.

The high court had said that the ECI had given a “bizarre” reason that its entire machinery was far too busy and has been busy since March 2023 in preparation for the Lok Sabha elections in 2024 to be bothered with the Pune bypoll.

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

The ECI filed a special leave petition (SLP) in the Supreme Court challenging the Bombay HC order. The Election Commission claimed the Bombay HC failed to consider that General Elections for Lok Sabha may be conducted in less than six months as the term of the current Lok Sabha is due to expire in June 2024.

The poll body also claimed that HC did not consider that conducting the Pune Lok Sabha seat bypolls would take at least two months due to statutory limitations and administrative requirements.

The HC rejected the ECI’s stand that the elected candidate would have a short tenure.

“That is not a valid consideration in view of the time limits that had been set out by the statute itself. It is not for the ECI to adopt a sliding scale. We find it unthinkable that several months should be allowed to pass after a casual vacancy occurs, and then an entire constituency should be told that now not much time remains and therefore there is little point in holding an election; or in other words, that the constituency might as well wait for the next general elections,” said the high court.

“That is a complete abdication of statutory and constitutional duties which we cannot possibly accept or contemplate. Correspondingly, the duty of the ECI is to ensure that an election is held and that the seat is filled. The ECI is not concerned with whether the returned candidate will or will not be ‘effective’ in the term that remains. That is for the people to decide when the next election comes around….”, the HC added.