Amid speculation of by-polls in Uttarakhand, a senior High Court lawyer, and constitution expert advocate TS Bindra said that it will be difficult for the Election Commission to explain to the court why the elections were not conducted earlier in the same circumstances.
"Earlier that the Election Commission has come to the conclusion that it is not possible to hold elections under the same Covid, circumstances, then in the case of Uttarakhand, it would be very difficult for the Election Commission to explain how it reached any other conclusion," he said.
He clearly mentioned, "If Election Commission reaches any other conclusion, then it can be challenged in the court, then it will be difficult to explain to the commission in the court that the same facts and circumstances, how two different decisions were made."
He said that very less time is left for the state elections in Uttarakhand, there is no vacancy in today's date, when will the vacancy be created, when will it be notified, when will the by-elections be held and will there be a period of one year after that? In view of all the circumstances, the Election Commission will have to decide whether elections can be held or not, adding that the government is going to face difficulties on this issue as well as technical issues.
"In 2018, the Election Commission had declared by-elections in Karnataka and conducted it in Andhra Pradesh citing less than a year's time span," Bindra explained.
Advocate Bindra said that the legal provisions are contained in it, the Election Commission has full power to decide when to hold elections. Whether to get it done or not, it is the discretion of the Commission.
"At the same time discretion cannot be mala fide arbitrarily, the Supreme Court has said that the Commission must have that discretion but it cannot be mala fide arbitrarily," he added.
According to Bindra, there is section 151A of the Representation of People Act, according to which the ECI has to conduct elections within a period of 6 months after the vacancy, but there is a clause of this Section according to which it has been provisioned in the legislature that, it is not mandatory to hold elections within a month in those cases where the remaining tenure of that legislative assembly is less than one year or the ECI together with the Center comes to the conclusion that it is not possible to hold elections.
On being asked that elections cannot be conducted even under Section 151-A (B) of the RP Act, he said, "Due to Corona in the state of Uttarakhand at present, there are such circumstances due to which it is not possible to conduct elections, but it is discretionary. It belongs to the Election Commission, it will consult the Central Government and using its discretion along with the Center if it comes to the conclusion that it is not possible to conduct elections in 6 months during Corona, do not conduct elections."
When asked about the August 7, 2001 decision of the Supreme Court bench headed by Chief Justice in SR Choudhary versus Punjab government case regarding the by-elections in Uttarakhand, Bindra said, "There was a dispute in the SR Choudhary case that Tejprakash were made Minister, according to Article 164/4 of the Constitution, if a person who is not an MLA or MLC becomes a minister, then it is necessary for him to elect an MLA or MLC and come to the house within 6 months."
He said that the principle of the government here is the representative government, who are the elected members, normally they become ministers. Advocate Bindra said that in 2001 the Supreme Court has said in SR Choudhary case that it is not possible that a minister who is not a member completes the period of 6 months and is unable to get himself reelected, then he will not become a minister again. Maybe, he said that it is not possible that a minister should resign and again he should be nominated again.
High Court Senior Lawyer and Constitution Expert Advocate T S Bindra clearly said that according to the decision of S R Choudhary case it is not possible that any minister or Chief Minister of Uttarakhand should resign, and get re-appointed after resignation.
( With inputs from ANI )
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