Path cleared for Karnal bye-elections with high court dismissing plea

Saurabh Malik

Chandigarh, April 3

A legal impediment in holding Karnal bye-elections was today removed with the Punjab and Haryana High Court dismissing a petition against it. Among other things, a Division Bench described as “not tenable” the petitioner’s contention that bye-election was not to be held in a State assembly constituency, where the remainder term of the vacancy was less than a year.

The Bench of Justice Sudhir Singh and Justice Harsh Bunger asserted the judgment in ‘Sandeep Yashwantrao Sarode’s case’, relied upon by the petitioner, clearly stipulated that “there could be no hard and fast rule about such period being always of at least one year”. All would depend upon the facts and circumstances, and the strength of the reasons given by the Election Commission of India (ECI), to fill a casual vacancy even for a shorter period.

The Bench also took note of the fact that an SLP against the judgment stood dismissed as withdrawn vide order dated April 1, 2019, passed by the Supreme Court. “Merely because the remainder of the term is less than one year, is no ground to debar the Election Commission of India, from holding the bye-election,” the Bench added.

In its detailed judgment on petition filed by Kunal Chanana for setting aside the notification “to the extent of declaring bye-elections for Karnal Assembly Constituency”, the Bench observed the new Cabinet under chief minister Naib Singh Saini took oath on March 12. Saini was not a member of the legislative assembly. He was obligated to get himself elected as a member of the state legislative assembly within six months of taking oath as the chief minister in terms of Article 164(4) of the Constitution of India.

It appeared that Karnal constituency was the only vacancy available for holding bye-election. “Considering the fact that the remainder term of the new incumbent chief minister being less than one year and the vacancy being available, no fault can be found with the impugned notification as regards the Karnal constituency, as the said act of the respondent-ECI, only facilitates the mandate of Article 164(4) of the Constitution”.

The Bench observed the constituency would remain unrepresented until the “determination of the term of the State Legislative Assembly in November” if the elections were not to be held regarding the vacancy despite its availability. As such, ECI could not be said to have committed any error in declaring the bye-election.

“It is held that the provision of Article 164(4) is a valid consideration for the Election Commission of India, for declaring holding of election for the vacant seat of a constituency in the state legislative assembly,” the Bench added.