PRAMOD LAXMAN GUDADHE versus ELECTION COMMISSION OF INDIA AND ORS. on 9 May 2018

[2018] 4 S.C.R. 397

PRAMOD LAXMAN GUDADHE

v.

ELECTION COMMISSION OF INDIA AND ORS.

(Special Leave Petition (Civil) No. 9968 of 2018)

MAY 09, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKARAND DR. D.Y. CHANDRACHUD, JJ.]

Representation of People Act, 1951 – s.151A – Interpretationof – Justifiability of holding bye-election – On resignation of electedrepresentative of constituency in question, the petitioner, publicspirited person filed PIL contending that if the election commencedin the month of May 2018, the effective period which the newincumbent would get would be only upto March 2019 that is lessthan one year and therefore the new incumbent would not be in aposition to function with all vigour and render service and thereshall be huge expenditure in conducting the election – High Courtdismissed the writ petition – Held: There was no election petitionpending in the instant case – The elected candidate tendered hisresignation on 08.12.2017 and the same was accepted by theSpeaker of Lok Sabha on 14.12.2017 – The command of s.151A isto hold the election within a period of six months from the date ofoccurrence of the vacancy – The next General Election to Lok Sabhais in June, 2019 – Therefore, the remainder of the term is not lessthan one year – The ground raised that the code of conduct wouldcome into play before the elections are held in June, 2019 isabsolutely sans substance as the Act does not contemplate so – It isthe period alone that should be the governing factor subject to thependency of election petition because that is not controlled by thenon obstante clause – Such an interpretation is in accord with thesanctified principle of democracy and the intention of the Parliamentis not to keep a constituency remaining unrepresented – The concernexpressed with regard to load on the exchequer cannot be treatedas a ground – It is so because the representative democracy has to

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[2018] 4 S.C.R.

Asustain itself by the elected representatives – High Court was rightin dismissing the writ petition – Election laws.

Dismissing the special leave petition, the Court HELD: 1. Section 151A commences with a non obstanteBclause and clearly states that notwithstanding anything containedin Sections 147, 149, 150 and 151, a bye-election for filling anyvacancy referred to in any of the said Sections shall be held withina period of six months from the date of the occurrence of thevacancy. The holding of election is controlled by a rider, namely,Cthat the remainder of the term of a member in relation to a vacancyis less than one year. There is a distinction between Sections147, 149, 150 and 151 on the one hand and Section 151A of theAct on the other. While interpreting these provisions, it has tobe kept in mind that though the right to elect a person isfundamental to democracy, yet it is only a statutory right. It isDalso well settled in law that the legislations governing the saidright have to be strictly construed. [Paras 10, 12][402-D-E; 403-B]

2. In the case at hand, no election petition was pending.EThe elected candidate tendered his resignation on 08.12.2017and the same was accepted by the Speaker of Lok Sabha on14.12.2017. The command of Section 151A is to hold the electionwithin a period of six months from the date of occurrence of thevacancy. As the factual score depicts, the vacancy occurred whenthe resignation was accepted by the Speaker of Lok Sabha onF14.12.2017. It is beyond any dispute that the next GeneralElection to Lok Sabha is in June, 2019. Therefore, the remainderof the term is not less than one year. The ground raised that thecode of conduct would come into play before the elections areheld in June, 2019 is absolutely sans substance as the Act doesnot contemplate so. It is the period alone that should be theGgoverning factor subject to the pendency of election petitionbecause that is not controlled by the non obstante clause. Suchan interpretation is in accord with the sanctified principle ofdemocracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressedwith regard to load on the exchequer cannot be treated as aground. It is so because the representative democracy has tosustain itself by the elected representatives. The matter wouldbe different when an election dispute is pending against thecandidate that comes within the ambit and sweep of Section 84 orSection 98(c) or Section 101(b) of the Act. That not being thecase, the view expressed by the High Court is absolutelyimpregnable. [Para 16][406-C-G]

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Election Commission of India v. Telangana RastraSamithi and Another (2011) 1 SCC 370 : [2010] 14SCR 468 – relied on.

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Sri Thomas Mates Gudinho v. Election Commission ofIndia, New Delhi and Others AIR 2002 Kant 232 –approved.

D. Sanjeevayya v. The Election Tribunal, AndhraPradesh and others AIR 1967 SC 1211 : [1967] SCR489 – referred to.

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CIVIL APPELLATE JURISDICTION : Special Leave Petition(Civil) No. 9968 of 2018.

From the Judgment and Order dated 11.04.2018 of the High Courtof Judicature at Bombay, Nagpur Bench in PIL No. 31 of 2018.

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Vikas Singh, Sr. Adv, Ms. Anangha S. Desai, Mehmood UmarFaruqui, Satyajit A. Desai, Advs for the Petitioner.

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AThe Judgment of the Court was delivered by DIPAK MISRA, CJI. 1. In a hallowed democratic body polity,the seminal requirement is fair and timely election. Purity of electionabandoning any kind of dogmatic idea is consubstantial to sustain thefundamental concept of democracy which is a basic feature of ourBConstitution. If the ‘thought of democracy’ is sullied, the cornerstone ofthe rule of law is corroded. When an individual, bereft of his status, goesto an election booth to cast his vote, he feels empowered and dignifiedand his self-esteem is accentuated as his inner conscience tells him thatin his exercise of franchise, he is choosing a representative who shallrepresent the constituency. This is the very sense of feeling empowered.CThe participation makes him realize his political right and the collectivefeels that there shall be governance in accord with the Constitution sothat the individual rights are protected and the collective aspirations aretaken care of. It has been said by many protagonists of democracy thatan atmosphere should always exist when precepts of democracy remainsafe.D

2. The Constitution of India gives emphasis on many aspects ofpolitical rights having regard to the rights of an individual. Thus, in ademocracy, holding of elections becomes significant and the constitutionaland statutory provisions take care of it. Eligibility criteria has been providedfor to contest an election and sometimes more restrictions are added inErespect of elections to the local self-governments. Delimitation andreservation of constituencies are conceived of and fructified so that theinclusive character of the Constitution is strengthened. The provisions inthe Representation of the People Act, 1951 (for brevity, ‘the Act’) areengrafted to cover many aspects of election including the manner, methodFof holding elections and the grounds for setting aside the election. TheAct also obliges the competent authority to see to it that no constituencyremains unrepresented beyond a definite period. It is because the electedrepresentative is expected to echo the concerns of the electoral collegein entirety. The voters cannot be deprived of the said right if the statuteconfers such a protection. Though the right to contest an election is notGa fundamental right, yet no interpretation should be placed on a statutoryprovision that will defeat the essential purpose of representation.

3. The prefatory note has become a warrant as the petitioner, avoter of Bhandara – Gondiya parliamentary constituency, in this special H

leave petition, has, in an astute manner, conceived a challenge bypropounding that the High Court has erroneously interpreted Section151A of the Act.

4. The elected representative, who was elected to theaforementioned constituency in the General Election to the Lok Sabhaconducted on 04.06.2014, tendered his resignation as the Member ofParliament under Article 101(3) of the Constitution read with Rule240(1A) of the Rules of Procedure and Conduct of Business in LokSabha on 08.12.2017 and the same was accepted on 14.12.2017.

5. As the seat fell vacant, the petitioner, a public spirited person,approached the High Court of Judicature at Bombay, Nagpur Bench atNagpur under Article 226 of the Constitution in Public Interest LitigationNo. 31 of 2018 contending, inter alia, that if the election commenced inthe month of May, 2018, the effective period which the new incumbentwould get is only upto March, 2019, that is, less than one year and,therefore, he would not be in a position to function with all vigour andrender service to the public and further, there shall be huge expenditurein conducting the election. He had drawn support from Report No. 255of the Law Commission of India on Electoral Reforms. Reliance wasplaced on Section 151A of the Act to substantiate the stand that holdingof election was not permissible under the said provision.

6. The High Court, scrutinizing the language employed in Section151A, opined that the argument advanced by the petitioner was sanssubstance and resultantly dismissed the Writ Petition.

7. We have heard Mr. Vikas Singh, learned senior counsel alongwith Ms. Anangha S. Desai, learned counsel for the petitioner.

8. The dates pertaining to the holding of election and the resignationare not controverted. Further, it is not a case where an election petitionwas pending against the elected candidate before the High Court. It isalso not in dispute that the General Election to the Lok Sabha is to beheld in June, 2019.

9. The said being the undisputed factual position, we are onlyrequired to analyse the statutory provisions and justifiability of the holdingof bye-election. Part IX of the Act deals with Bye-Elections. Section147 deals with casual vacancies in the Council of States. Section 149adverts to casual vacancies in the House of the People. Section 150

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Astates about casual vacancies in the State Legislative Assemblies andSection 151 deals with casual vacancies in the State Legislative Councils.Section 151A, which was inserted by the Representation of the People(Amendment) Act (21 of 1996) with effect from 01.08.1996, beingrelevant for the present purpose, is extracted below:- B“151A. Time limit for filling vacancies referred to in sections147, 149, 150 and 151.—Notwithstanding anything containedin section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the saidsections shall be held within a period of six months from the dateof the occurrence of the vacancy:C

Provided that nothing contained in this section shall apply if—

(a) the remainder of the term of a member in relation to a vacancyis less than one year; or (b) the Election Commission in consultation with the CentralDGovernment certifies that it is difficult to hold the bye-electionwithin the said period.”

10. The aforesaid provision commences with a non obstante clauseand clearly states that notwithstanding anything contained in Section147, Section 149, Section 150 and Section 151, a bye-election for fillingEany vacancy referred to in any of the said Sections shall be held withina period of six months from the date of the occurrence of the vacancy.The holding of election is controlled by a rider, namely, that the remainderof the term of a member in relation to a vacancy is less than one year. Itis further postulated therein that if the Election Commission in consultationwith the Central Government certifies that it is difficult to hold the bye-Felection within the said period, the principal part of the provision containedin Section 151A would not apply. In the present case, we are notconcerned with the second postulate, for what has emerged forconsideration singularly pertains to the concept of period.

11. It is submitted by Mr. Vikas Singh, learned senior counsel forGthe petitioner that the prohibition contained in Section 151A directly comesinto play and, therefore, the High Court would have been well advised torestrain the Election Commission not to hold the election. It is furtherpropounded by him that the amount to be spent from the exchequer onholding of an election ultimately casts a burden on the tax payers and H

PRAMOD LAXMAN GUDADHE v. ELECTION COMMISSIONOF INDIA AND ORS. [DIPAK MISRA, CJI]

additionally, the elected candidate will only have some ceremonial rolesince he would not be in a position to do anything for the members of theelectoral college and, therefore, the election should not be allowed to beconducted.

12. At the very outset, we must make a distinction between Sections147, 149, 150 and 151 on the one hand and Section 151A of the Act onthe other. While interpreting these provisions, it has to be kept in mindthat though the right to elect a person is fundamental to democracy, yetit is only a statutory right. It is also well settled in law that the legislationsgoverning the said right have to be strictly construed.

13. A two-Judge Bench in D. Sanjeevayya v. The ElectionTribunal, Andhra Pradesh and others[1], prior to the insertion of Section151A of the Act, was dealing with the controversy that pertained tooccurring of a casual vacancy and, in that context, referred to the schemeof the Chapter pertaining to bye-elections and analyzed Article 190(3)of the Constitution. The Court, referring to the said Article and the variousprovisions of the statute and after adverting to the fact situation wherean election petition was pending challenging the election, held:-

“4. We are unable to accept the argument of the appellant ascorrect. In our opinion, the provisions of Section 150 of the Actmust be interpreted in the context of Sections 84 and 98(c) andother relevant provisions of Part III of the same Act. If theinterpretation contended for by the appellant is accepted as correctthe vacancy must be filled by a bye-election as soon as a memberresigns his seat notwithstanding the pendency of an election petitionchallenging his election. If the candidate who filed the electionpetition eventually gets a declaration that the election of the memberis void and that he himself had been duly elected there will be twocandidates representing the same constituency at the same time,one of them declared to be duly elected at the General Electionand the other declared to have been elected at the bye-electionand an impossible situation would arise, It cannot be supposedthat Parliament contemplated such a situation while enactingSection 150 of the Act. Parliament could not have intended thatthe provisions of Part VI of the Act pertaining to election petitions,should stand abrogated as soon as a member resigns his seat in A

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Athe Legislature. It is a well settled rule of construction that theprovisions of a statute should be so read as to harmonise with oneanother and the provisions of one section cannot be used to defeatthose of another unless it is impossible to effect reconciliationbetween them. …”

BProceeding further, the Court ruled that when an election petitionhas been referred to a tribunal by the Election Commission and the tribunalis seized of the matter, the petition has to be disposed of according tolaw. The Tribunal has to adjudge at the conclusion of the proceedingwhether the returned candidate has or has not committed any corruptpractice at the election and secondly, it has to decide whether the secondCrespondent therein should or should not be declared to have been dulyelected. A returned candidate cannot get rid of an election petition filedagainst him by resigning from the seat in the Legislature, whatever thereason for his resignation may be.

14. In this regard, reference to the authority in ElectionDCommission of India v. Telangana Rastra Samithi and another[2 ]isextremely useful. In the said case, the respondent had challenged thedecision of the Election Commission of India not to hold the bye-electionsin respect of two Assembly Constituencies in the State of Andhra Pradeshwhich was set aside by the High Court. The High Court had quashedEthe action placing reliance on Section 151A of the Act holding, interalia, that the said provision is mandatory especially when the vacancieshad already been notified by the Speaker of the Assembly as contemplatedunder Article 190(3)(b) of the Constitution. It is worth noting that theHigh Court had ignored the pendency of the election petitions againstthe candidates who had resigned on the foundation that uncertainFconsequences of the election petitions could not dilute the effect of Section151A of the Act. The two-Judge Bench, scrutinizing the provisions ofthe Act and Article 190(3)(b), stated:- “45. The Act is a complete code for the conduct of elections bythe Election Commission of India appointed under Article 324 ofGthe Constitution which provides for superintendence, direction,control and conduct of elections to Parliament and to theLegislature of every State and also of elections to the offices ofPresident and Vice-President held under the Constitution. The 2 (2011) 1 SCC 370H

PRAMOD LAXMAN GUDADHE v. ELECTION COMMISSIONOF INDIA AND ORS. [DIPAK MISRA, CJI]

provisions of Article 190(3)(b) of the Constitution have, therefore,to be read along with the provisions of the 1951 Act. Section 84 ofthe said Act cannot be rendered otiose by holding that all vacancieson account of the aforesaid provision of the Constitution becomeimmediately available for being filled up by way of a bye-election.The same reasoning applies in regard to Section 151-A of the1951 Act and its impact on the latter part of Section 84 thereof.As has been mentioned hereinbefore, a proceeding under Section84 has to run its full course, particularly for the purposes of Section8-A of the said Act. The views expressed by the Division Benchof the High Court on this point cannot, therefore, be sustained.”

The Court went on to say that the introduction of Section 151Adid not alter the position as far as the provisions of Section 84 and,consequently, Sections 98(c) and 101(b) of the Act are concerned,although a casual vacancy may have occurred within the meaning ofSection 150 of the Act. The Court made a distinction between the twocategories of vacancies, namely, vacancies in which election petitionshad been filed and are pending and other vacancies where no such caseswere filed and pending. The Court opined that in the first category ofcases, the vacancies could not have been treated to be available for thepurposes of filling up within the time prescribed under Section 151A ofthe Act merely because a member of the House of a Legislature of aState had resigned and the same had been accepted by the Speaker. Toarrive at the said conclusion, emphasis was laid on Section 84 of theAct. In the second category of cases, the Court pronounced that thevacancies would have to be construed as clear vacancies warrantingaction under Section 151A of the Act.

15. A Division Bench of the High Court of Karnataka in SriThomas Mates Gudinho v. Election Commission of India, New Delhiand others[3] , while interpreting Section 151A of the Act, has opined:- “13. …Section 151A no doubt seeks to ensure that noConstituency remains un-represented for more than six months.But it is not unconditional. It is subject to two exceptions. i.e.where the remainder of the term of a member in relation to avacancy is less than one year or where the Election Commissionin consultation with the Central Government certifies that it is A

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Adifficult to hold the bye-election within the said period. Furtherthe non obstante clause is limited in its application to Sections 147,149, 150 and 151. The non obstante clause does not refer to Section84 or 98(c) or 101. It therefore follows that Section 151A willhave no application if an Election Petition is pending where theprayer is not merely a challenge to the election of the electedBcandidate, but also seeks a declaration that the petitioner or someone else should be declared as having been elected under Sections84 read with Section 101 of the Act.”

Be it noted, the said view has been approved in the case of Telangana Rastra Samithi (supra).C

16. In the case at hand, no election petition was pending. Theelected candidate tendered his resignation on 08.12.2017 and the samewas accepted by the Speaker of Lok Sabha on 14.12.2017. The commandof Section 151A is to hold the election within a period of six months fromthe date of occurrence of the vacancy. As the factual score depicts, theDvacancy occurred when the resignation was accepted by the Speakerof Lok Sabha on 14.12.2017. It is beyond any dispute that the nextGeneral Election to Lok Sabha is in June, 2019. Therefore, the remainderof the term is not less than one year. Whether the election is to be heldor not would be governed by clause (b) to the proviso to Section 151Aand we are not concerned with the same. The ground raised that theEcode of conduct would come into play before the elections are held inJune, 2019 is absolutely sans substance as the Act does not contemplateso. It is the period alone that should be the governing factor subject tothe pendency of election petition because that is not controlled by thenon obstante clause. Such an interpretation is in accord with theFsanctified principle of democracy and the intention of the Parliament isnot to keep a constituency remaining unrepresented. The concernexpressed with regard to load on the exchequer cannot be treated as aground. It is so because the representative democracy has to sustainitself by the elected representatives. We may hasten to add that thematter would be different when an election dispute is pending againstGthe candidate that comes within the ambit and sweep of Section 84 orSection 98(c) or Section 101(b) of the Act. That not being the case, theview expressed by the High Court is absolutely impregnable.17. Consequently, Special Leave Petition, being devoid of merit,stands dismissed. There shall be no order as to costs.HDevika Gujral Petition dismissed.