The general election has been recently concluded to 543 Lok Sabha seats in India and a new government has started to function. It was a gruelling process undertaken by the Election Commission of India to elect 543 Lok Sabha MPs and MLAs of four states. Importantly, bye-elections were conducted in 25 seats in 12 legislative assemblies; these were necessitated by various reasons, such as resignations, deaths and disqualifications. Among these 25 seats, a few came under scrutiny for a variety of reasons and presented a legal challenge vis-a-vis implementation of the Representation People’s Act (RPA) in true spirit, shedding light on the importance of timely elections to maintain the democratic fabric of the nation.
Section 151A of the Representation of the People Act, 1951, mandates that by-elections must be conducted within six months of a legislative vacancy, ensuring timely representation. However, proviso (a) of Section 151A of the Act stipulates that by-elections are not required if the remaining term of the assembly or the vacant seat is less than one year. This provision serves as an exception to the mandate of conducting elections within six months of a vacancy.
Proviso (a) Under the Spotlight
The intricacies surrounding the resignation of Sarfaraj Ahmad, a Jharkhand Legislative Assembly member, had ignited a fervent debate on the necessity of conducting by-polls for the Gandey assembly seat. This focal point of contention revolved around that resignation, thrusting the applicability of proviso (a) to Section 151A into the spotlight. The opposition’s staunch resistance, anchored in the premise of a less-than-one-year tenure, raised crucial questions about the relevance and cast a shadow over the fundamental principle of timely elections as the lifeblood of a thriving democracy. Central to this discourse was a compelling argument challenging the efficacy of the proviso in the current scenario. It posited that the influence of this proviso was rendered ineffectual in this specific case, given that the remaining tenure of the departing member, at the moment of the vacancy, surpassed the critical one-year threshold.
Historical Void and Legislative Symphony
Historically, the R. P. Act, 1951 lacked a temporal framework for conducting elections to fill casual vacancies. Recognizing this gap, an amendment in 1996 introduced Section 151A, compelling the Election Commission of India (ECI) to organize elections within a specified duration. The objective was to prevent undue delays and ensure that legislative seats do not remain vacant for prolonged periods, thus upholding the democratic process.
Section 150 empowers the ECI to conduct bye-elections to fill legislative assembly vacancies, and Section 151A provides a parliamentary directive for completing such elections within six months. Proviso (a) to Section 151A, often a subject of debate, doesn’t exempt the ECI from its duty but rather offers flexibility regarding the prescribed time frame.
Crucially, the period of one year in proviso (a) should be computed concerning the resigning member, not the incoming representative elected through a bye-election or the date of result declaration. This nuanced interpretation aligns with the broader context of Section 150 of the R. P. Act, 1951.
The Election Commission’s stance on this matter is consistent with this perspective. In a press note from 2018, the ECI asserted that no bye-elections were required in Andhra Pradesh as the remaining term of the members was less than a year from the date of occurrence of the vacancy. The ECI’s position reinforces the understanding that the remainder term is measured from the vacancy’s occurrence.
Some quarters have expressed an opposing view, suggesting that the one-year period in Section 151A pertains to the term served by the successor. However, this stance neglects the provisions in Sections 147, 149, 150, and 151 of the 1951 Act,
Sections 147, 149, 150, and 151 of the Representation of the People Act, 1951 outline the procedures for conducting by-elections to fill vacancies arising from death, resignation, or disqualification in the Council of States, the House of the People, and state legislative assemblies.
Legal Perspectives in Harmony
In a notable case, Election Commission of India Vs. Telangana Rashtra Samiti, SCC 370 2011 (1) the Supreme Court emphasized the importance of holding timely elections, recognizing them as fundamental to sustaining democracy. The Court clarified that the mandate in Section 151A pertains to holding elections within six months of the vacancy occurrence, not the result declaration.
The High Court of Guwahati, Kohima Bench, in a judgment dated 10 July 2017 passed in W.A. No. 188/2017, underscored that there is no prohibition on the ECI from conducting bye-elections even if the remainder of the member’s term is less than one year. This decision’s finality, affirmed by the Supreme Court’s dismissal of a Special Leave Petition, adds weight to this interpretation.
Proviso (a) to Section 151A does not imply a blanket ban on bye-elections with terms less than a year. The Constitution allows individuals to serve as Ministers for up to six months without being a legislative member, prompting the ECI to conduct bye-elections within this period to meet constitutional requirements and allow voters to express their views on ministerial appointments.
The official Hindi translation of the proviso reinforces the notion that “the remainder of the term” must be determined from the vacancy’s occurrence in relation to the resigning member, not the incoming representative’s declaration date.
In Pramod Laxman Gudadhe Vs. Election Commission of India and Ors 7 SCC 550a (2018), the Supreme Court emphasized the need for fair and timely elections, pointing out that the remainder of the term mentioned in Section 151A is not less than one year. This judicial stance clarifies that the focus should be on the vacancy occurrence, not the result declaration.
Recently the Election Commission of India notified by-elections to Gandey assembly constituency in Jharkhand along with the notification of election schedule of General Elections to the parliament in 2024. In doing so, the Election Commission ignored the verdict of the Katol case and calculated the vacancy from the date of acceptance of resignation rather than taking into account the time available for the incumbent member owing to such by-election. This appears to be the correct view, though it still leaves the question of discretion of the ECI in such decisions unanswered.
Controversial Crescendo
The controversial Sandeep Yashwantrao Sarode Vs. Election Commission of India, Writ Petition No.2251/2019 (Katol case), decided by the Nagpur Bench of Bombay High Court, is challenged on the grounds that it misinterprets Section 151A, divorcing it from the broader context of Sections 147 to 151. The contention is that the High Court’s findings violate the essence of these sections and jeopardize democratic representation. In this case the Nagpur Bench of the Bombay High Court held that the remainder of the term for which by-elections need to be conducted should be calculated from the date the incoming member is declared elected. This interpretation raised questions about the timely representation in legislative bodies and the applicability of Section 151A of the Representation of the People Act, 1951.
In conclusion, the legal discourse surrounding Section 151A of the R. P. Act, 1951 highlights the need for a nuanced interpretation, considering the intent of timely elections while ensuring democratic representation. The conflicting viewpoints underscore the complexity of legal language and the necessity for a balanced and comprehensive understanding to uphold the democratic ethos. The interpretation sought by the Hon’ble High Court in Katol deviates from the constitutional ethos. The legal ballet orchestrated by Section 151A is a harmonious composition, ensuring that no constituency remains unrepresented for an extended period. Despite the challenge posed by a truncated remainder term, the orchestration of bye-elections persists as a constitutional imperative.
In a realm where legal language dances with the delicate threads of democracy, the symphony of Section 151A stands as a testament to the enduring pursuit of fair and timely elections, the cornerstone of a vibrant and participatory democracy.
(The writers, alumni of NLSIU, Bengaluru, are, respectively, an Advocate and visiting faculty, NUSRL, Ranchi, and an IAS officer posted as Deputy Commissioner cum District Magistrate, Seraikela-Kharsawan, Jharkhand. The views expressed are personal.)