The Bombay High Court on Wednesday ordered the Election Commission to immediately hold bye-polls in the Pune Lok Sabha constituency, which has been vacant since March following the death of MP Girish Bapat, The Indian Express reported.

The bench of Justices GS Patel and Kamal Khata quashed the certificate issued by the Election Commission not to hold the bye-election for the vacant seat.

“In any parliamentary democracy, governance is done by elected representatives who are the voices of the people,” the court said while passing the order, according to the Hindustan Times. “If a representative is no more, another must be put in place. People cannot go unrepresented. That is wholly unconstitutional and a fundamental anathema to constitutional structure.”

The court said that the Election Commission had given a bizarre reason that it is difficult to hold the bye-election because the poll body has been busy since March 2023 preparing for the Lok Sabha polls.

The bench said, “Business of ECI staff cannot result in citizens going unrepresented and that is unthinkable and it would amount to sabotaging [the] entire constitutional framework, which we trust that is what even ECI did not want”.

The court was hearing a plea by Sughosh Joshi, a resident of Pune, against the Election Commission’s decision to not hold the bye-poll. The petitioner had sought the court’s directions to the Commission to conduct the bye-election, as six months have passed since the death of Bapat on March 29.

A Right to Information request filed by Joshi had reportedly revealed that the Commission had decided not to hold a bye-election for the vacant seat under subsection (b) of Section 151A of the Representation of the People Act.

The provision allows the Commission to skip the bye-poll for a vacant seat if the remainder of the term of the legislature is less than one year or if the poll body, in consultation with the Union government, finds it difficult to conduct the bye-election within the same period. The current term for the Lok Sabha seat will end on June 16, 2024, which is more than a year after the seat became vacant in March 2023.

In this case, the poll body had cited the difficulty in holding the bye-election, However, the court rejected the Commission’s argument.

“It is not for ECI to adopt a sliding scale, and we find it unthinkable that several months could go past and then the entire constituency be told that now time does not remain and the constituency might as well wait for the next general elections,” the court said. “We cannot possibly accept or contemplate this. Correspondingly, the duty of ECI is to ensure that an election is held and the seat is filled. ECI is not concerned whether returned candidates will be effective in the term that remains.”

The fundamental principle in which the Commission must function is the right to representation, the court said. The court added that a constituency cannot remain unrepresented beyond the prescribed period.

The court pointed to an inconsistency in the Commission’s argument, saying that it had no difficulty in holding Assembly elections in five states in October and November and the bye-poll in the Jalandhar Lok Sabha constituency, according to the Hindustan Times.

“Neither administrative reasons nor burden on [the] exchequer are reasons to refuse [the] bye-election,” the court said.

“Only relevant date is the date on which vacancy actually arises,” the bench said. “Any other date be either random or subject to some level of ad-hocism which is unacceptable. One can never predict with certainty the date on which the code of conduct will start operating or election results will be announced but the date of vacancy is written in stone and there can be no ambiguity.”