Supreme Court Of Pakistan Declares Election Commission’s Decision To Delay Punjab Polls Unconstitutional

Supreme Court of Pakistan on Tuesday declared Election Commission of Pakistan (ECP)'s decision to delay the election in Punjab as unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and consequently quashed the decision.

The bench of Chief Justice Umar Ata Bandial, Justice Ijaz ul Ahsan and Justice Munib Akhtar said,

“Neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution.”

The apex court of Pakistan was hearing the petition filed by Pakistan Tehreek-e-Insaf (PTI) led by former PM of Pakistan Imran Khan. The petition had challenged the ECP decision to postpone the Punjab polls from April 30 to October 8 after the government refused to conduct the election on the ground of economic crisis.

The court ordered the government of Pakistan to release and provide funds in the sum of Rs. 21 billion to the Commission for the purposes of the general elections to the Punjab and Khyber Pakhtunkhwa Assemblies by April 10.

“The Commission shall, by 11 April 2023, file a report in the Court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the Bench for consideration in Chambers. If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard,” the bench said.

The court ordered the Pak government to provide aid and assistance to the Election Commission as required under Article 243(1) of the Constitution, for the successful conduct of general elections for the Punjab and KPK Assemblies. This includes making necessary personnel available for security such as those from the Armed Forces, Rangers, Frontier Constabulary, or any other forces under the government's control, for security and other election-related purposes, said the court

It fixed May 14 as the date of polling in Punjab.

Can the Election Commission of India delay the conducting of state assembly elections?

Article 324 of the Indian Constitution confers the power of superintendence, direction, and control of elections to the Election Commission of India. This provision gives the Election Commission the authority to take necessary steps to conduct free and fair elections in the country.

Section 153 of the Representation of People Act,1951 (RPA) states that if the Election Commission is of the opinion that it is necessary or expedient to do so, it may extend the time for the completion of any election, but not so as to postpone the date originally fixed for the election.

In the case of In re Gujarat Assembly Election Matter, 2002 (2002 SCC OnLine SC 1009), the Supreme Court interpreted the employment of the words "on an expiration" occurring in Sections 14 and 15 of the RPA respectively show that the Election Commission is required to take steps for holding election immediately on expiration of the term of the Assembly or its dissolution, although no period has been provided for.

"Yet, there is another indication in Sections 14 and 15 of the Representation of People Act that the election process can be set in motion by issuing of notification prior to expiry of six months of the normal term of the House of the People or Legislative Assembly. Clause (1) of Article 172 provides that while promulgation of emergency is in operation, Parliament by law can extend the duration of the Legislative Assembly not exceeding one year at a time and this period shall not, in any case, extend beyond a period of six months after promulgation has ceased to operate," the court said in the ruling.

The apex court further explained that the aforesaid provisions do indicate that on the premature dissolution of the Legislative Assembly, the Election Commission is required to initiate immediate steps for holding an election for constituting the Legislative Assembly on the first occasion and in any case within six months from the date of premature dissolution of the Legislative Assembly.

Justice Arijit Pasayat concurring with the opinion said that, “Situations may be created by interested persons to see that elections do not take place and the caretaker Government continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded.”

In the case of Kishan Singh Tomar v Municipal Corporation of The City of Ahmedabad,2005 (Appeal (Civil) 5756 of 2005), the Supreme Court observed that: “State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. The Election Commission shall try to complete the election before the expiration of the duration of five years.”

In the case of Avinash Thakur v. Chief Election Commissioner, the Supreme Court dismissed a petition seeking postponement of the Bihar Assembly Elections on account of COVID-19 and the state being ravaged due to floods. Justice Ashok Bhushan said that the plea was “misconceived” and could not be allowed under Article 32 of the Constitution as the election was yet to be declared, and therefore, the Petitioners could not cite the pandemic as the reason to seek for the postponement of the elections.

"COVID is not a ground for postponement of elections. This court cannot tell CEC what to do. It will consider everything," Justice Bhushan remarked.