Roque Dias
Margao
Reacting to the High Court judgment cancelling the Ponda by-election, legal experts said that the Election Commission of
India (ECI) must explain why the constituency remains unrepresented and why there was a delay in filling the vacancy.
Retired Chief Justice of Allahabad High Court Ferdino Rebello said that calculation of the 12-month period was already laid down earlier by the Bombay High Court in the Nagpur case.
“The ECI was a party in that matter, and I understand that the ECI did
not challenge it in appeal,” he said, adding that the judges of the High Court accepted that interpretation and chose not to take a different view.
“There is judicial discipline requiring one to follow the judgment of a coordinate bench unless there is reason to take a different view and refer the matter to another bench. In this particular case, the division bench did not find any reason to take a different view, especially when the Advocate General of the state of Goa supported the petitioner’s stand, stating that the petitioner had correctly interpreted the law. Therefore, the judges merely followed the law already laid down by another division bench in the Nagpur case,” Rebello said.
He further said that the High Court refused to grant a stay to the ECI as the notification issued on March 16 had been quashed.
“Since the ECI was aware of what the law was in the Nagpur case, and since it was a party to it, the ECI should have taken a careful view of it. It was entirely the ECI’s fault that the filling of the vacancy was delayed. It should not have denied representation to the people of Ponda. It should answer to the people of Ponda as to why it delayed the election process for five months,”
he said.
Senior lawyer and constitutional expert Advocate Cleofato Coutinho said
the ECI delayed filling
the vacancy.
“However, the real issue is that the people of Ponda do not have a representative,” he said, adding that the key question is whether the one-year period should be counted from the date of death of the elected representative or from when the new member is sworn in.
“I would say that the one-year period starts from the death of the representative, but the High Court has interpreted it as starting from the time a new member is sworn in,” he said.
Bar Council of Goa president Advocate Prasad Naik said the High Court decision clearly highlights the importance of strictly following the law in all electoral processes. “The election process must be carried out in accordance with legal requirements and not merely as a routine exercise,” he said.
Former State Election Commissioner Prabhakar Timble said the order, coming 24 hours before voting, “provides a comic end to the Ponda by-election”.
“I would call the timing of the order rude and aggressive, as it provided no time to the ECI, candidates or political parties to file an appeal,” he said.
