While expressing its strongest disapproval for keeping a constituency unrepresented for indefinite period which goes against the basic tenets of democracy and Constitution, the Bombay High Court in a most learned, laudable, landmark and latest oral judgment titled Sughosh Joshi vs The Election Commission of India & Anr. in Writ Petition No. 14242 of 2023 and cited in Neutral Citation: 2023:BHC-AS:37487-DB in exercise of its civil appellate jurisdiction that was pronounced as recently as on December 13, 2023 has directed the Election Commission of India (ECI) to hold the bye-election for the Pune Lok Sabha seat immediately. The Bombay High Court minced just no words absolutely to say that an indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure. It also was unequivocal in adding further that the administrative inconvenience cannot undermine a statutory and constitutional obligation to hold an election. It also must be mentioned that the Court was dealing with a writ petition that had been filed by a registered voter in the Pune Parliamentary constituency and Kothrud Legislative Assembly constituency. Accordingly, the Bombay High Court then asked the Election Commission of India to proceed with necessary steps for the election.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice GS Patel for a Division Bench of the Bombay High Court comprising of himself and Hon’ble Mr Justice Kamal Khata sets the ball in motion by first and foremost putting forth clarifying in para 2 that, “The facts are not contentious.”

To put things in perspective, the Division Bench envisages in para 3 that, “The Petitioner, Sughosh Joshi, a registered voter in the Pune parliamentary constituency and Kothrud Legislative Assembly constituency. He is on the electoral roll for both the constituencies. In this Petition, he challenges a “certificate” dated 23rd August 2023 issued by the Election Commission of India (“ECI”), the 1st Respondent, said to be under Section 151A(b) of the Representation of People Act, 1951 (“RoPA”).”

As we see, the Division Bench then states in para 4 that, “Shortly stated, this “certificate” says that the Election Commission has “difficulty” in holding a bye-election to the Parliamentary Constituency–34 Pune.”

Do note, the Division Bench notes in para 5 that, “This constituency is unrepresented and the parliamentary seat for this constituency is vacant since 29th March 2023 on account of the demise of the then elected Member of Parliament for Pune, the late Shri Girish Bhalchandra Bapat. This is undisputed.”

Most significantly, the Division Bench mandates in para 14 holding that, “Further, it is settled law that constituencies cannot remain unrepresented beyond a defined period. The reason is plain. In any parliamentary democracy, governance is by elected representatives. Those elected to Parliament are the voice of the people. If the representative is no more, another must be elected in his place. The people choose their representatives. A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure. This is the reason why the Supreme Court in Pramod Laxman Gudadhe v Election Commission of India & Ors (2018) 7 SCC 550 inter alia held that the provisions of RoPA inter alia obliged the authority under it to ensure that no constituency remains unrepresented beyond a definite period. The elected representatives are expected to echo the concerns of the electorate in its entirety. Voters cannot be denied this right. It is a protection conferred by statute.”

Be it noted, the Division Bench notes in para 15 that, “As we have noted above, Clause ‘a’ of the proviso to Section 151A will not apply. The term of the 17th Lok Sabha ends on 16th June 2024. The Pune Parliamentary Constituency seat has been vacant since 29th March 2023. Its vacancy cannot continue for a period of more than a year. The only relevant date is the date on which the vacancy actually arises. Any other date would necessarily be either random or subject to some level of adhocism, which is unacceptable. One can never predict with certainty, for instance, the date on which Code of Conduct will begin to operate or when the results of an election will finally be announced. But the date of occurrence of a casual vacancy is virtually written in stone and there can be no ambiguity about it.”

It is worth noting that the Division Bench notes in para 16 that, “In paragraph 18 of the decision in Gudadhe’s case, the Supreme Court held that the command of Section 151A is to hold the election within a period of six month from the date the casual vacancy occurs (if the remainder of the term is not less than one year counted from the date the vacancy occurred). The legislative intent, the Supreme Court held, is not keep a constituency unrepresented.”

It cannot be glossed over that the Division Bench propounds in para 17 that, “The ECI is not only vested but charged with the duty to conduct elections. It is a constitutional requirement. The exercise of powers of the ECI have never been held to be exempted from judicial review. The power of the ECI is not, in the words of the Supreme Court in Digvijay Mote v Union of India & Ors, (1993) 4 SCC 175 unbridled. Judicial review is always permissible especially when the statutory body’s acts affect public law rights and remedies. Wednesbury reasonableness might well be one of the factors to be taken into account. The Supreme Court has echoed this approach in Election Commission of India v Ashok Kumar (2008) 8 SCC 216.”

Quite significantly, the Division Bench expounds in para 18 that, “The “certificate” impugned in this case is decidedly peculiar. It says two things. First, it says that a returned 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. 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 ECI can no more ensure the effectiveness of a candidate in the remaining term than it can do so in the whole of a five-year term.”

Needless to say, the Division Bench states in para 19 that, “The fundamental and only principle under which the ECI must function is the right to representation. It simply cannot let a constituency remain unrepresented beyond the prescribed period.”

Further, the Division Bench mentions in para 20 that, “The second ground for not holding the election is, in our considered view, one that borders on the bizarre. We are solemnly told that the ECI — that is to say, the whole of the machinery of the ECI — is far too busy and has been busy since March 2023 in preparation for the general elections to the Lok Sabha in May and June 2024 to be bothered with a bye-election for the Pune parliamentary constituency. This, we are told, is a genuine “difficulty”.”

Of course, the Division Bench then states clarifying that, “It is not.”

Broadly speaking, the Division Bench postulates in para 22 that, “The word “difficulty” in Section 151A proviso sub-clause (b) is not to be read in this manner to mean some administrative inconvenience. No amount of administrative inconvenience can undermine a statutory and constitutional obligation to hold an election. The preoccupation of ECI personnel and staff cannot result in citizens going unrepresented. That is simply unthinkable. It would amount to sabotaging the entire constitutional democratic framework. We trust this is not at all what the ECI wanted to convey to us.”

Most forthrightly, the Division Bench then holds in para 23 that, “We understand that a genuine “difficulty” might be one where there is such a severe law and order situation prevalent in that constituency that it is not practicable or feasible to conduct an election in a safe, orderly and reasonable fashion at that moment in time. Such things do happen — examples abound — and the statute and court always make allowance for those. But such a use of “difficulty”, i.e., asking a writ court to accept that a preoccupation with a general election is a valid reason to let a parliamentary constituency remain vacant is wholly unacceptable.”

As things stands, the Division Bench states in para 31 that, “The prayers in this Petition are these:

“(a) That this Hon’ble Court be pleased to declare that Certificate No. 464/Bye-election/2023/EPS dated 23 August, 2023 issued by the Respondent No. 1 under clause (b) of the proviso to Section 151A of the Representation of People Act, 1951 to not hold bye-election in the Constituency being non est in the eyes of law being arbitrary, substantively illegal and irrational and violative of the rights of the Petitioner is ultra vires, unconstitutional and void ab-initio;

(b) that this Hon’ble Court be pleased to declare that the grounds taken by the Respondent No. 1 in the in its Letter No. 464/Bye-election/2023/EPS dated 11 August 2023 to the Central Government and the Certificate No. 464/Bye-election/2023/EPS dated 23 August 2023 under clause (b) of the proviso to Section 151A of the Representation of People Act, 1951 to not hold bye-election in the Constituency being non est in the eyes of law in light of the due process having not been followed in terms of the said provision;

(c) that this Hon’ble court be pleased to issue a Writ of mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, order and/or direction commanding Respondent No. 1 as this Hon’ble Court deems fit and proper, to immediately conduct the bye-election in the said Constituency in compliance with Section 151A of the Act;

(d) that this Hon’ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, order and/or direction commanding the Respondent No. 1 as this Hon’ble court deems fit and proper to forthwith refrain from acting upon and/or in pursuant of the impugned actions in any manner whatsoever.”

Most commendably, the Division Bench then directs in para 32 that, “Rule is accordingly made absolute in terms of prayer clauses (a), (b), (c) and (d) set out above. The ECI will proceed to take all necessary steps immediately to call the election for the Pune Parliamentary Constituency-34 in accordance with law.”

Finally, the Division Bench then concludes by directing in para 33 that, “In the facts and circumstances of the case, there will be no order as to costs.”

In sum, we thus see that the Bombay High Court has very rightly directed the Election Commission of India to immediately hold bye-elections for Pune Lok Sabha seat. It was also very rightly mandated by the Court that keeping a constituency unrepresented for indefinite period is wholly unconstitutional and is fundamentally anathema to our Constitutional structure. It was also made pretty clear by the Bombay High Court that the administrative inconvenience cannot undermine a statutory and constitutional obligation of the Election Commission of India to hold an election and was directed to do so accordingly for the Pune Lok Sabha seat. Very rightly so!

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