Akola by-election withheld, Will Karnal go the same way
Legal experts cite Bansi Lal precedent
Aayush Goel, Guest Reporter
Gurugram, March 29, 2024: While the legitimacy of Karnal assembly by-elections has come under scanner after suspension of a similar by-elections in Maharashtra, legal experts citing precedents have constitutionally justified the same.
The Election Commission of India (ECI) announced to withhold the by-poll to the Akola West Assembly seat in Maharashtra a day after Bombay High Court ordered that the by-election will not be held as the new member will get less than a year to represent the constituency.
Citing the same orders, Congress MLA from Faridabad Neeraj Sharma moved to ECI seeking quashing of Karnal assembly by-elections scheduled on May 25. The seat has been vacated by former CM and mow BJP’s Lok Sabha candidate from Karnal ML Khattar and new non-MLA CM Nayab Singh Saini will be contesting it.
Sharma questioned the legality of elections calling it “wastage of public money” since whoever is elected from the seat will only remain a member of the assembly for a period of a few months. The tenure of the current Haryana Assembly is till November 3, 2024. The legal experts however feel that given the fact that CM Saini is a candidate in the election, is what makes it legit.
“The tenure of the vacant Karnal assembly seat is less than one year, hence in view of Section 151A of the Representation of the People Act, 1951, under normal circumstances, a by-election cannot be held on that seat. However this seat is now being contested by the Chief Minister of the state, Nayab Singh Saini, who is currently not a member of the current 14th Haryana Legislative Assembly. Even if the remaining term of the seat is less than one year, a by-election can be held on this seat because under Article 164 (4) of the Constitution of India, any Chief Minister or Minister, being a non-MLA, can hold office only for a maximum of 6 months after his appointment. Therefore, if CM Saini is not elected as a member of the present Haryana Legislative Assembly within 6 months of his appointment, he will have to leave the post of Chief Minister. Therefore, it is necessary to provide an opportunity to CM Saini to get elected as MLA which validates vacant Karnal Vidhan Sabha by elections,” said Hemant Kumar, a legal expert on elections and advocate of Punjab and Haryana High Court.
Kumar stated that the state itself holds a precedent to similar situations and by-elections. He said that it happened about 38 years ago in 1986 when in Haryana, the then CM Bhajan Lal was replaced by Lok Sabha MP Bansi Lal. Despite less than one year of the then Haryana assembly term remaining, Tosham assembly of Bhiwani district went for by-election in which Bansi Lal became MLA. Although this by-election held for a short period was challenged first in the High Court and then in the Supreme Court, both the top courts did not interfere in it. Similarly in 1999, assembly by-election was also held for the then CM of Odisha and Lok Sabha MP Giridhar Gamang and was declared a winner though the assembly term was for a period of less than a year.