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Synopsis

The Bombay High Court has directed the Election Commission of India to hold the by-poll election for the Pune Lok Sabha Constituency, observing that citizens cannot go unrepresented as it would be unconstitutional.

"In any parliamentary democracy, governance is done by elected representatives who are the voices of people. If the representative is no more, another must be put in place. People cannot go unrepresented. That is wholly unconstitutional and is a fundamental anathema to our constitutional structure," the court said.

A division bench of Justice Gautam Patel and Justice Kamal Khata stated that the Election Commission of India's stand to not hold elections, citing busyness with other polls and preparatory activities for the 2024 Lok Sabha elections, was "bizarre and wholly unreasonable."

The high court was hearing a petition filed by a Pune resident seeking to direct the election commission to hold the by-poll elections, as six months had already lapsed for the election commission to fill the vacancy as prescribed under the law.

The post went vacant after the death of the Member of Parliament (MP) Girish Bapat on March 29, this year.

The Election Commission denied conducting by-polls, citing its busy schedule with the 2024 Lok Sabha elections. Additionally, they expressed concern that holding by-polls would result in the elected candidate having a shorter tenure.

The division bench said that ECI cannot leave a constituency vacant and deny rights to voters.

"The ECI is not only vested but charged with the duty and obligation to hold elections and see to it that any vacancy is filled in. The ECI cannot let a constituency remain unrepresented. Voters cannot be denied this right,” the court said.

The division bench emphasized that no level of inconvenience should diminish the statutory and constitutional obligations and duties assigned to the Election Commission of India (ECI).

“No amount of inconvenience can undermine the statutory and constitutional obligations and duties cast upon the ECI. This is something unthinkable and would amount to sabotaging the constitutional framework,” the court said in its order.

The court highlighted that the Election Commission of India's powers and directives are subject to judicial review, particularly when they impact public law and interest.

The petition underscored that keeping the constituency unrepresented for over a year due to the Election Commission not holding a by-election is manifestly arbitrary and grossly disproportionate.

“..the said Constituency being kept unrepresented for over a year due to the Respondent No 1 not holding a bye- election is manifestly arbitrary and grossly disproportionate and excessive besides being grossly illegal and unconstitutional being hit by Article 14 and 21 of the Constitution,” the plea reads.

Advocates Kushol Mor, Dayaar Singla and Shraddha Swarup appeared for the petitioner.

Case title: Sughosh Joshi vs ECI