ECI Objects to PIL Sayan Banerjee v. The Election Commission of India and Ors on the grounds of maintainability

The Election Commission of India issued a notification according to which in 159-Babanipur Assembly Constituency, the by-elections would be conducted on 30th September. The fact that the special request was received from the Chief Secretary, Government of West Bengal was also highlighted. The statement by Election Commission of India specified that while all other constituency by-elections were not being held, the by-elections would be held based on the request of Chief Secretary, Government of West Bengal.

A Public Interest Litigation (Sayan Banerjee v. The Election Commission of India and Ors)has been moved challenging this decision of the Election Commission of India. This plea was filed by Sayan Banerjee, through Advocate Ankur Sharma with the view that holding such by-elections is unreasonable considering the Covid-19 situation and that fact that it unreasonable of the Chief Minister to interfere with the free and fair democratic system. The plea further alleges that the reason behind this request is create a situation to favour the Chief Minister of the State (Mamata Banerjee) to save her from the from the constitutional consequence under Article 164(4) of the Constitution of India, 1950.

Article 164 (4) of the Indian Constitution states that: ‘A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister’

The PIL prays for an interim order of injunction in respect of the Memo dated 04/09/2021 issued by the Election Commission of India in respect of Bhabanipur Assembly Co and for the quashing of the memo dated 04.09.2021 issued by the Election Commission of India and all subsequent action/actions taken on the basis of the said decision in respect of 159 Bhabanipur.

According to the most recent development in this matter, the Election Commission of India has challenged the maintainability of this Public Interest Litigation. advocate Sidhant Kumar for the defendants argued that pursuant to Article 329 of the Constitution no petition regarding electoral matters can be entertained by the Court until the declaration of the election results.

Article 329 of the Indian Constitution: ‘Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.’

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