Haryana CM Saini’s election to assembly in limbo after HC order quashing Akola West bypoll

Haryana CM Saini’s election to assembly in limbo after HC order quashing Akola West bypoll

New Delhi: Citing an order passed by the Bombay High Court setting aside the Election Commission of India’s notification for holding a bypoll for the Akola West assembly seat in Maharashtra’s Vidarbha, a Congress MLA has now demanded that the poll body quash the same for the Karnal assembly seat where a bye-election is slated to take place on 25 May.

In a letter to the ECI, Congress MLA from Faridabad NIT Neeraj Sharma has submitted that holding a bye-election for Karnal at this time would amount to “wastage of public money” since whoever is elected from the seat will only remain a member of the assembly for a period of four months.

The repercussions of the cancellation of the notification of the Karnal assembly bypoll, however, could have larger implications since the ruling Bharatiya Janata Party (BJP) in Haryana has declared Chief Minister Nayab Singh Saini as its candidate for the Karnal bypoll.

A person not a member of the legislative assembly if appointed chief minister is required to be elected to the House within six months of the appointment. Saini was appointed chief minister on 12 March in place of Manohar Lal Khattar, whose resignation necessitated the Karnal bypoll.

The tenure of Haryana Legislative Assembly is scheduled to end on 3 November 2024.

Unlike Karnal, bypolls were not held for at least four parliamentary constituencies, namely Pune, Ambala, Ghazipur and Chandrapur despite the fact that these seats fell vacant more than a year ago. The ECI even moved the Supreme Court in January this year challenging a Bombay High Court order directing it to hold a bye-election to the Pune Lok Sabha seat.

The poll panel contended that the person elected will not remain a member of the Lower House for more than one year. It also cited “difficulty” in conducting the bypoll owing to preparations for the general election.

Constitutional expert P.D.T Achary, a former secretary general of the Lok Sabha, told ThePrint that “there cannot be two laws for two states”.

“The Bombay High Court is right in its interpretation of the Representation of the People Act, 1951. This means that the Karnal bypoll can’t be held since the remaining term of the assembly is less than one year,” he said.

Bombay HC order on Akola bypoll

The Nagpur bench of the Bombay High Court had on 26 March quashed the notification issued for the Akola West bypoll on the ground that the same would amount to a violation of the Representation of the People Act, 1951, since the elected legislator would get a term of less than one year given that the term of the Haryana Vidhan Sabha is set to end on 3 November 2024.

The ECI Wednesday said it had decided to “withhold the notification” for the Akola West bypoll in compliance with the high court order.

In their order, Justices Anil Kilor and M.S. Jawalkar of the Bombay High Court found that a bypoll for Akola West seat at this time was “contrary” to Section 151 (A) of the Representation of the People Act. This provision requires the ECI to hold a bypoll to fill a vacant parliamentary or assembly seat within six months of the seat having fallen vacant, provided that the remaining term of the elected member is more than one year.

The bench noted that the question before it was whether the period of one year relates to the date of the occurrence of the vacancy or the period during which an individual can hold office before getting elected.

The order was issued on a plea by one Anil Shivkumar Dubey and relied on an interpretation of Section 151 (A) in the Saoner constituency case in 2019.

A bench of the Bombay High Court had then ruled that the “remainder of the term of a member means the remaining term an incoming member would get from the date of declaration of the result of the bye-election from out of total term of five years”.

Sandeep Goyal, an advocate practising in the Punjab and Haryana High Court has said that he would challenge the EC notification for the Karnal assembly bypoll on these grounds.

HC order has ‘cast aspersions’ on Karnal bypoll

In the case of Haryana, the then chief minister Manohar Lal Khattar had resigned as the MLA from Karnal on 13 March. Three days later, the ECI declared it had notified a bypoll for the Karnal seat to be held on 25 May.

The BJP found itself in a similar fix in Uttarakhand after it replaced its then chief minister Trivendra Singh Rawat in March 2021 with Tirath Singh Rawat, who was not an MLA at the time. As a result, the latter had to demit office within four months of his appointment and the party had to replace him with its then Khatima MLA Pushkar Singh Dhami.

“In the case of Uttarakhand, the party leadership did not take a risk by holding a bypoll before the assembly elections knowing the political situation in the state where many sitting chief ministers had lost elections from Khanduri to Harish Rawat. But Haryana is different since there is no political uncertainty that would lead the party to believe that the sitting chief minister would lose a bypoll,” said a senior Haryana BJP leader.

The leader, however, told ThePrint, that the recent Bombay High Court order “has cast aspersions on the Karnal bypoll” and that the state unit is “consulting” the high command in Delhi on the same.

Dharambir Singh, the BJP MP from Bhiwani-Mahendragarh, added that the party is currently focussed on ensuring a victory for in Karnal from where former chief minister Khattar is contesting the Lok Sabha polls and his successor Nayab Singh Saini is seeking to get elected to the assembly.

Meanwhile, a central BJP functionary who advises the party on legal matters told ThePrint, “How did the party miss these small facts? It’s either oversight or arrogance. I don’t know but the bye-election can only happen if nobody challenges it in court or the courts treat it as a special case but the law is the same for all states. If there is a similar judgment, the courts will only consider the EC’s request if they treat this as a special case.”

Another senior Haryana BJP leader stressed that the notification for the Karnal bypoll “has not been challenged in the courts” as of yet.

“If the court quashes the notification for the bypoll, then the party will be left with only two options: Either to change the chief minister or to call for early elections in Haryana since a person appointed as chief minister who is not a member of the assembly can hold office only for six months since the date of the appointment if not elected to the assembly during this time.”

(Edited by Amrtansh Arora)