Madhya Pradesh HC Dismisses Plea For Postponement Of Rajya Sabha Elections As Non-Maintainable [Read Order]

Holding the petition to be non-maintainable in terms of Article 329(b) of the Constitution, the division bench of Chief Justice AK Mittal and Justice VK Shukla directed the Petitioner, Dr. Aman Sharma, to take recourse to the remedy, as may be available to him, in accordance with law.

Article 329(b) provides that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question except by an "election petition" presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

Arguments Forwarded By Election Commission

On the strength of this provision, Standing Counsel for the Election Commission, Advocate Siddharth Seth argued that in case, there is violation of any statutory right, the petitioner would have a remedy of filing an "election petition" raising all the issues and contentions therein.

It was also argued that the petitioner is neither a voter in the elections to be conducted for Rajya Sabha nor any statutory right of the petitioner has been violated.

Reliance was placed on Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, whereby the Constitution Bench of the Apex Court had, while dealing with the scope of Articles 329(b) and 226 of the Constitution, held that "Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result."

On the merits of the case, the Commission had submitted that vacancies of the Vidhan Sabha have nothing to do with Rajya Sabha elections. It was stated that vacancies are uncertain and this cannot be a ground to stall an election which is otherwise due. The Commission also assured that all requisite measures had been taken to ensure safe voting amid the pandemic, as per Central Guidelines.

Findings

The division bench concurred with the preliminary submissions put forth by the Commission on the ground of maintainability. It observed that the grounds urged by the Petitioner for deferment of the elections do not create any justification to "bypass" the mandate of Article 329(b) of the Constitution.

"We decline to entertain the present writ petition leaving it open to the petitioner to take recourse to the remedy, as may be available to him, in accordance with law. However, we are not expressing any opinion on the merits of the contentions raised by the learned counsel for the petitioner," the bench held.

Reference was made to Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216, whereby while dealing with the issue of jurisdiction of the High Courts to entertain petition under Article 226 and to issue interim directions after commencement of electoral process, the Top Court held,

"The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

Background

The Election Commission had announced that the Poll for three vacancies of the state of MP in the Rajya Sabha will be held on June 19, 2020.

The Petitioner, through Advocate Abhinav Dhanodkar, had sought deferment of this notification, while stating that more than 1/10^th of the house will not be represented in the election, if the 24 seats lying vacant in the State Legislative Assembly are not filled up first.

He had asserted that as per Section 152 of the Representation of People Act, members of the Legislative Assembly will be electors i.e. representing 230 constituencies. However in this case, 24 constituents would be deprived of their rights or representation and the voting by the members will make sufficient difference in the result of the poll.

"Accepting the preliminary objection of the respondents, the writ petition is dismissed with the liberty," the court said.

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