In an important judgment, the Bombay High Court has quashed and set aside the decision of the Election Commission of India to fill up a casual vacancy in Katol assembly constituency in Nagpur, Maharashtra, calling it arbitrary, discriminatory, unreasonable and violative of the principle of rule of law.
A division bench of Justice SB Shukre and Justice PV Ganediwala of the Nagpur bench was hearing a writ petition filed by one Sandeep Sarode, a resident of Katol. Sarode had questioned the legality and correctness of the declaration of holding a bye-election in Katol constituency on April 11.
Ashish Ranjit Deshmukh was the MLA from Katol constituency for a period of four years of his term. Thereafter, he tendered his resignation, which was accepted by the Speaker of Legislative Assembly of Maharashtra on October 6, 2018, and since then, the said Assembly seat is lying vacant.
In a press note dated March 10, 2019, the ECI has declared that bye-election will be held from Katol constituency on April 11, 2019. This was challenged by the petitioner.
According to the petitioner, the declaration to hold the election to the casual vacancy violates the mandate of Section 151 of the Representation of the People Act, 1951 on two grounds-
"Firstly, S.151-A mandates that a by-election for filling any vacancy referred to in Sections 147, 149, 150 and 151, must be held within a period of six months from the date of occurrence of the vacancy. Whereas, in the present case, the period of 6 months from date of vacancy is completed six days before the scheduled elections.
Secondly, under S.151-A(a), Section 151A would have no application if the remainder of the term of a member, in relation to a vacancy, is less than one year."
Petitioner's counsel SP Bhandarkar argued that the ECI had not exercised its powers in a reasonable manner and it failed to take into consideration relevant factors such as the larger public interest, huge expenditure being incurred for a very short period of time, putting great stress upon the governmental manpower, etc. He further stated that Assembly elections are set to take place sometime in October/November this year, hence the elected candidate would not even have a one-year term from the date of his/her election till the next election takes place.
ECI's counsel Senior Advocate MG Bhangde submitted that remainder term of the elected member in the said constituency would not be less than a year since it would be calculated from the date of vacancy of the constituency, not the date of declaration of election results.
There is no command made anywhere in the RP Act, 1951 that wherever remainder of the term of a member in relation to a vacancy is less than one year, no bye-election should be held and the vacancy be filled by holding General Assembly Elections, Bhangde said.
The court examined the relevant provisions of the RP Act and observed-
"On the happening of the contingency contemplated in Section 150 of the R.P. Act, 1951, a statutory duty bears itself upon the ECI to fill the casual vacancy within the stipulated period of time, as provided under Section 151A of the R.P. Act, 1951. The duty under Section 151A is imperative in nature, which is discernible from the overall structure of Section 151A."
The bench also examined various judgments of the Supreme Court wherein similar cases had been dealt with. Referring to the meaning of "remainder term of the member", the court said-
"The clause (a) of the proviso is applicable fully and "the remainder of the term of a member" must reasonably mean the balance term reckoned from the date of declaration of the result of the election. Seen in this way, we would find that the remainder of the term of the incoming member is hardly going to be of about five months. The question would arise as to how far would it be fair and reasonable and also equal to have the casual vacancy filled for such an extremely short period of time."
The court then examined decisions of the ECI in similar cases from other states and noted-
"In the present case also, the remaining term is less than one year. But we find that same decision as has been taken by the ECI in the case of vacancies from the State of Andhra Pradesh has not been taken here. There is thus application of different yardstick by the ECI to vacancies from Andhra Pradesh and of another to a casual vacancy arising from Katol Assembly Constituency. Why is it so? The ECI, however, has not provided any answer to the application of such different standards to vacancies from Andhra Pradesh and vacancy from Katol, both equally situated in terms of the rationale adopted by the ECI.
No answer and no reason having been given by the ECI for treating the present casual vacancy differently, we find that the decision taken by the ECI here to fill casual vacancy for a period of about five months is arbitrary, discriminatory and not reasonable. It is a violation of the principle of rule of law, which pervades Articles 14 and 21 of the Constitution of India with "brooding omnipresence", as held in the case of Maneka Gandhi Vs Union of India."
Thus, the election program and relevant notification declaring bye-election from Katol were quashed and set aside.
Read the Judgment Here