On 17 June 2020, the High Court of Madhya Pradesh comprising of Justice Ajay Kumar Mittal and Justice Vijay Kumar Shukla in the case of Aman Sharma vs. The Chief Election Commissioner and another dismissed the writ petition. Though did not express an opinion on the merits of the contentions raised by the counsel for the petitioner which resulted in accepting the preliminary objection of the respondents, the writ petition is dismissed with liberty.
The writ petition has been filed by way of a Public Interest Litigation under Article 226 of the Constitution of India seeking deferment of the biennial elections for three vacant seats of Rajya Sabha from the State of Madhya Pradesh by the Election Commission of India, primarily on the ground that there has been no application of mind while fixing the said date and the elections for filling of casual vacancies in Legislative Assembly of various States were postponed due to Covid-19 pandemic.
Petitioner’s contentions:
- Heavy reliance was placed upon the judgments of the Apex Court in Digvijay Mote Vs. Union of India and others, (1993) 4 SCC 175 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.
- It was submitted that the provision Article 329(b) of Constitution of India states that the election to either House of Parliament or to the House or either House of the Legislature of a State shall not be questioned except by filing an election petition in the prescribed manner and 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 submitted that a similar issue with regard to the jurisdiction of the High Courts to entertain a petition under Article 226 and to issue interim directions after the commencement of the electoral process came up for consideration before the Apex Court.
Respondent’s contentions:
- The respondents already filed an advance response to the petition wherein a preliminary objection has been raised to the effect that the present writ petition should not be entertained as there is a bar provided under Clause (b) to Article 329 of the Constitution of India read with Section 18 and Section 100(1)(d)(iv) of the Representation of the People Act, 1951.
- It was also urged that the petitioner is neither a voter in the elections to be conducted for Rajya Sabha nor any statutory right of the petitioner has been violated.
- Learned counsel further placed strong reliance upon the latest pronouncement of the Apex Court in the case of Paresh Dhanani Vs. Election Commission of India passed in Writ Petition (Civil) No.774/2019 decided on 25.6.2019.
- The learned counsel contended that there is a violation of any statutory right, the petitioner would have a remedy of filing an election petition raising all the issues and contentions therein.
HIGH COURT
The court declined to entertain the writ petition leaving it open to the petitioner to take recourse to the remedy, as may be available to him, in accordance with law Also the Court stated that it is proved 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 also the court stated that they will find force in the preliminary objection raised by the learned counsel for the respondent's Election Commission of India.
The court held that justification cant be created to bypass the mandate of Article 329(b) of the Constitution of India in writ jurisdiction of this Court.
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