Bombay High Court Directs Election Commission Of India To Conduct Bye-Election for Vacant Pune Lok Sabha Seat

The Bombay High Court on Wednesday ordered the Election Commission of India (ECI) to conduct a bye-election immediately for the Pune Lok Sabha constituency, which has been vacant since the death of MP Girish Bapat on March 29, 2023.

A division bench of Justice GS Patel and Justice Kamal Khata criticized the ECI's reasoning for not conducting the by-election, claiming that it has been too busy since March 2023 with preparations for the 2024 Lok Sabha elections.

“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”, the court observed.

The court quashed ECI's certificate stating that bye-elections will not be held as it is busy with preparation for 2024 General Elections and the candidate elected in the bye-election will have a very short tenure.

The petitioner Sughosh Joshi, a registered voter in the Pune Constituency, challenged the certificate issued by the ECI on August 23, 2023, under Section 151A of the Representation of People Act (RP Act). The certificate claimed that the ECI could not hold a by-election.

The petitioner argued that once a parliamentary seat becomes vacant, a bye-election must be notified and held. The court noted that the Lok Sabha Secretary's notification had confirmed the vacancy since March 29, 2023, while the current Lok Sabha Term will end on June 16, 2024.

The court rejected the ECI's contention that it was difficult to hold a by-election. It emphasized that constituencies cannot remain unrepresented beyond a defined period, stating that in a parliamentary democracy, governance relies on elected representatives who are the voice of the people. The court emphasized ECI's obligation to ensure that no constituency remains unrepresented for an indefinite period.

The court observed that the ECI's stand was inconsistent as it had conducted by-elections for several Legislative Assembly and Lok Sabha constituencies since the Pune seat became vacant. It emphasized that the relevant date for considering the by-election is the date on which the vacancy arises, with no room for ambiguity.

Regarding the ECI's certificate, the court found it peculiar, highlighting two problematic aspects. First, the notion that the returned candidate would have a short tenure was deemed an invalid consideration.

"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...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", the court held.

Secondly, the ECI's claim of being too busy to conduct the by-election was characterized as a ground "that borders on the bizarre." The court emphasized that the busyness of ECI staff cannot result in citizens going unrepresented, as that it would sabotage the constitutional framework. Administrative inconvenience cannot undermine the statutory obligation to hold an election, the court added.

The court questioned the ECI's consultation with the Central Government before issuance of the certificate noting that the entire process was complete in a single day. The court emphasized that such consultation must involve deliberation on why no action had been taken since March 29, which was not done.

“The ECI claims it consulted the centre. That so called consultation was on August 11. The answer from the Central Government to Ministry of Law and Justice followed very same date. We have not known governments able to consult, act and deliberate with such extraordinary dispatch”, the court remarked.

The court further held that the certificate for not conducting a bye-election is not a private communication between ECI and the Central Government but an intimation to the electorate that there exists reason within the statute for them to continue to go unrepresented, the court said.

Accordingly, the court allowed the writ petition, ruling in favour of the petitioner and directing the ECI to conduct the bye-election for the Pune Lok Sabha constituency.

Advocates Kushal Mor, Shraddha Swarup, Dayaar Singla and Rishabh Rhoy i/b Pravin Singh, represented the Petitioner.

Advocates Pradeep Rajagopal and Drishti Shah i/b Rekha Rajagopal represented the ECI.

Case no. – WP/14242/2023 [Civil]

Case Title – Sughosh Joshi v. ECI and Anr.

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