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Allahabad High Court to EC: Start process for holding by-election to the Suar assembly seat

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New Delhi (ILNS): The Allahabad High Court on Thursday directed the Election Commission of India (ECI) to start the process for holding the by-election in the Suar assembly constituency in Rampur district.

The seat had fallen vacant when the Allahabad High Court declared the election of Abdulla Azam Khan, son of a senior leader of Samajwadi Party, Azam Khan, as void on December 16, 2019, and consequently set aside his election in an election petition. Subsequently, the state assembly had notified it as a vacant seat on February 27, 2020.

The writ petition was filed by Shafeeq Ahmad of Rampur.

A division bench of justice Shashi Kant Gupta and justice Pankaj Bhatia said: “The Election Commission of India has not been able to justify as to why and under what circumstances, the by-election has not been held on the aforementioned constituency despite the vacancy having occurred in December 2019 and duly notified long back by the state assembly on February 27, 2020. Thus, the election commission has failed to perform its constitutional and statutory duty to hold the by-election for the aforementioned constituency within the time prescribed under Section 151A of the Representation of People’s Act.”

The Court further observed that the “will of the people is supreme in a democracy and it cannot be lightly interfered with. The election commission, under no circumstance, can frustrate the will of the people. This Court, which is a custodian of the Constitution, cannot be a silent spectator in a case of this nature where the election commission has failed to exercise its powers in a manner which has the effect of destroying or making erosion into the democratic setup, which is a part of the basic structure of the Constitution.

“However, it does not in any way affect the operation and effect of section 151-A. Furthermore, there is no interim order which has been passed by the Hon’ble apex court, despite there being a specific provision contained in Section 116-B of the Act. In the present case, it may be noted that the apex court has not stayed the operation and effect of the order dated December 16, last year, passed in Election Petition No. 8 of 2017, by this Court, setting aside the election of Mohammad Abdulla Azam Khan,” observed the bench.

“Therefore, in its considered opinion, the provisions of Section 116-C did not have any applicability to the facts and circumstances of the present petition,” the bench said.

“The submission of the Counsel for the Election Commission is also liable to be rejected in view of a clear mandate of the Act as clarified under Section 107…Clause (1) of Section 107 is a clear answer to the argument of counsel for the Election Commission in as much it categorically provides for the date and period from when the order of the Court shall take effect from and is only subject to any interim order by the appellate court”, stated the bench.

The petitioner had requested the Court to direct the ECI to conduct by-polls on Suar seat. The Petitioner contended that while the election was set aside by the high court in an election petition, no interim order was passed by the apex court in the appeal pending before it.

Besides, a vacancy was also duly notified by the state assembly. Hence in this backdrop, there cannot be any justification for the election commission to not hold the by-election.

-India Legal Bureau

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