New Delhi, Nov 9 The Supreme Court on Wednesday directed the Election Commission to defer issuing a gazette notification for Rampur Assembly by-election till November 11, which would allow Samajwadi Party leader Azam Khan to seek a stay on his conviction in the 2019 hate speech case before the appellate court on Thursday.
A bench, headed by Chief Justice D.Y. Chandrachud directed the Additional Sessions Judge, Rampur, to advance hearing on Khan's application, seeking stay on conviction, on Thursdat and also decide it on the same day.
The bench, also comprising Justices Hima Kohli and J.B. Pardiwala, asked the EC to issue the gazette notification on or after November 11, depending upon the outcome of the application of stay on conviction.
During the hearing, Chief Justice Chandrachud asked senior advocate Arvind Datar, representing the EC, "Can you stay the issuance of gazette notification set for tomorrow for 72 hours? So that he can move to a higher court and get the sentence stayed?"
He added that even otherwise look at the alacrity the very next day of the conviction. the seat is declared vacant.
Chief Justice Chandrachud told the EC, "You cannot pick and choose... will you do it in case of all convicts? The bench added that an MLA from another district was also convicted on October 11 and sentenced to two years but no decision has been taken on his disqualification the next day.
Senior advocate P. Chidambaram, representing Khan, contended that the UP Assembly declared the Rampur seat vacant, the next day after his client's conviction in a hate speech case on October 27.
He emphasized that such a swift action was "unprecedented" and added that it was politically motivated. Chidambaram said although BJP MLA from Khatauli constituency was convicted for two years by an order passed on October 11, no such action was taken.
The top court was informed that EC issued a press release notifying the schedule for by-election for the Rampur seat and that the official gazette notification is slated for publication on Thursday.
Datar submitted that disqualification under the Representation of Peoples Act, is automatic upon conviction and the provision of the Act which permits freezing of disqualification during the pendency of appeal filed challenging the conviction was struck down in the Lily Thomas case.
The bench told Datar to allow Khan some reasonable time, otherwise it would appear as a selective exercise, depending on what political affiliation the convict has.
Khan was disqualified after his conviction in the criminal case on October 27, under the Representation of Peoples Act,1951 and the Rampur Assembly Constituency, which he was representing, was declared vacant.
Disposing off Khan's plea, the top court directed the Additional Sessions Judge, Rampur to decide his application for stay of conviction on Thursday and the EC can issue the notification regarding bye-polls on or after November 11.
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