#electioncommissionofindia Archives

The petitioner alleges irregularities in the election process related to respondents 10-14 and 3-10. They claim these candidates illegally contested on a different party’s symbol despite belonging to another party. This allegedly violates guidelines set by the Election Commission under Article 324 of the Constitution and Section 29A of the Representation of People Act, 1951. The petitioner argues that false affidavits were filed claiming non-membership in other parties, and the acceptance forms for these candidates should be declared invalid, rendering their election results null and void.

Issue

Whether the petitioners are members of 2 political parties or one?
Whether petitioners are members of the political party on whose symbol they contested election?

Legal Provision

Article 324 of the Constitution of India, gives power to the Election Commission to direct, control, and conduct elections to all Parliament, to the Legislature of every state and of elections to the offices of the President and Vice President held under the Constitution. It vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.

Article 329B of the Constitution of India provides that the election of a legislative candidate can only be assailed by way of an election petition

Section 29A of the Representation of People Act, 1951 talks about Registration with the Election Commission of associations and bodies as political parties

Court Analysis & Decision

The counsel for petitioner during his submission relied on the judgement of supreme court in K.Venkatachalam v. A.Swamickan [Appeal (Civil) 1719 of 1986].

The respondents contesting the election countered the petitioner’s claims by asserting membership in the party whose symbol they used and cite the Election Symbols Order requiring candidates backed by specific state parties to adopt that party’s reserved symbol. Furthermore, they invoke Article 329B of the Constitution, specifying that challenges to legislative election results must be filed through formal election petitions. In essence, they argued their adherence to election rules and emphasize the proper legal course for contesting their victory.

Despite relying on a precedent where an ineligible candidate was disqualified, the court ruled differently in this case. Disputed factual questions surrounding the respondents’ party affiliations made them unsuitable for resolution through a writ petition. The court emphasized the need for proper legal channels like election petitions to address such contested matters, ultimately dismissing the petitioner’s claims.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Bhawana Bahety

click to view judgement

10 Jan

Bye-election for the Pune Lok Sabha cannot be conducted immediately: Supreme Court

Prime Legal

Blog #bombayhc, #electioncommissionofindia, #Representation of Peoples Act 1951, #SupremeCourt

Case Title: Election Commission of India v. Sugosh Joshi and another

Case No: SLP(C) No. 200 of 2024

Decided on: 8th January, 2024

CORAM: THE HON’BLE MR. CHIEF JUSTICE OF INDIA D.Y. CHANDRACHUD, HON’BLE MR. JUSTICE J.B. PARDIWALA & HON’BLE MR. JUSTICE MANOJ MISRA

Facts of the Case

Sughosh Joshi, a registered voter in the Pune parliamentary constituency and Kothrud Legislative Assembly constituency. He is on the electoral roll for both the constituencies. He challenges a “certificate” dated 23rd August 2023 issued by the Election Commission of India (“ECI”), the 1st Respondent, said to be under Section 151A(b) of the Representation of People Act, 1951 (“RoPA”). This “certificate” says that the Election Commission has “difficulty” in holding a bye-election to the Parliamentary Constituency–34 Pune. This constituency is unrepresented and the parliamentary seat for this constituency is vacant since 29th March 2023 on account of the demise of the then elected Member of Parliament for Pune, the late Shri Girish Bhalchandra Bapat.

The High Court, in its judgment, pointed out that the Lok Sabha Secretary’s notification had officially confirmed the vacancy from March 29, 2023, and the ongoing term of the Lok Sabha is scheduled to conclude on June 16, 2024. Rejecting the Election Commission of India’s argument that organizing a by-election was challenging, the division bench comprising Justice GS Patel and Justice Kamal Khata underscored that constituencies must not remain without representation beyond a stipulated timeframe. The court emphasized the crucial role of elected representatives as the voice of the people in a parliamentary democracy. It noted the inconsistency in the ECI’s stance, citing instances where by-elections had been conducted for various Legislative Assembly and Lok Sabha constituencies since the Pune seat became vacant. The High Court stressed that the relevant date for considering the by-election is the date when the vacancy arises, leaving no room for ambiguity.

Legal Provision

Section 149 of RoPA reads as follows:

“149. Casual vacancies in the House of the People—

(1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Gazette of India, call upon the parliamentary constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.

(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.”

Section 151A was added by a 1996 amendment. It reads thus:

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151—

Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if—

(a) the remainder of the term of a member in relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.

Issue

The issue revolves around the validity and justification of the Election Commission of India’s reluctance to conduct a bye-election for the vacant Pune parliamentary constituency, challenged by the registered voter, Sughosh Joshi.

Court’s analysis and decision

The Supreme Court issued a stay on the Bombay High Court’s directive to the Election Commission of India regarding the organization of a bye-election for the vacant Pune Lok Sabha seat. This seat has remained unoccupied since the death of MP Girish Bapat on March 29, 2023.

While issuing notice on the Special Leave Petition filed by the Election Commission of India challenging the High Court’s order dated December 13, 2023, a bench issued the interim order. The bench noted that the current situation invokes Section 151A of the Representation of Peoples Act 1951. As per this provision, the Election Commission of India is not obligated to conduct a bye-election to fill a vacant seat if the remaining term for the vacancy is less than one year. The bench stated its intention to schedule the matter for a hearing in March or April, during which it will establish legal principles on the matter.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

Click here to read the judgement