Madhya Pradesh HC
Madhya Pradesh HC
Litigation News

No justification to bypass mandate of Article 329: Madhya Pradesh HC dismisses plea seeking deferment of poll for vacant Rajya Sabha seats

Rintu Mariam Biju

The Madhya Pradesh High Court recently refused to entertain a petition seeking deferment of elections for three vacant Rajya Sabha seats of the state (Aman Sharma Vs. The Chief Election Commissioner and another).

The Election Commission of India had earlier announced that the elections for three vacancies would be held on June 19.

The Bench of Chief Justice Ajay Kumar Mittal and Justice Vijay Kumar Shukla was hearing a Public Interest Litigation (PIL) seeking postponement of the Rajya Sabha polls for three vacant seats in the state on grounds that the state assembly is not currently at full strength, since 24 seats were vacant.

It was further stated that more than 1/10th 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.

The petition further emphasized that as per Section 152 of the Representation of People Act, the members of the Legislative Assembly will be electors i.e. representing 230 constituencies. However, in this case, the 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, the petitioner contended.

Counsel appearing for Election Commission made a preliminary objection that the writ petition should not be entertained as there is a bar provided under Article 329 (b) of the Constitution of India read with Section 18 and Section 100(1)(d)(iv) of the Representation of the People Act, 1951.

Article 329(b) reads as under:

“329. Bar to interference by courts in electoral matters.– Notwithstanding anything in this Constitution-

(b) no election to either House of Parliament or to the House or 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.”

It was further argued that that the petitioner was neither a voter in the elections to be conducted for the Rajya Sabha nor was his statutory right being violated in the instant case. If at all, there is any violation of his statutory right, then the petitioner would have had a remedy of filing an election petition it was added.

Countering this, the petitioner's counsel relied on judgments of the Apex Court including Digvijay Mote v. Union of India and others to contend that in spite of the imposition of the bar under Article 329(b) of the Constitution of India, the writ petition is maintainable.

After referring an array of judicial precedents, the Divison Bench went to note that elections/election disputes are a matter of special nature and right to the office in an election dispute is not a lis at common law nor an action in equity.

"...the grounds urged by the learned senior counsel for the petitioner for deferment of the elections that there has been no application of mind while fixing the date of poll and that earlier the elections for filling of casual vacancies in Legislative Assembly of various States were postponed due to Covid-19 pandemic, do not create any justification to bypass the mandate of Article 329(b) of the Constitution of India in writ jurisdiction of this Court."

Madhya Pradesh High Court

With these observations, the Court proceeded to dismiss the petition. While doing so, the Bench also granted liberty to the petitioner to take recourse to appropriate remedy in accordance with law.

The Bench also refrained from expressing its opinion on the merits of the contentions raised by the petitioner.

The petitioner was represented by Senior Advocate A M Mathur and Advocate Abhinav Dhanodkar.

Advocate Siddharth Seth appeared for the Election Commission.

[Read order here]

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