Pramod Laxman Gudadhe vs Election Commission Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 9968 OF 2018

Pramod Laxman Gudadhe Petitioner (s)

VERSUS

Election Commission of India and Ors. Respondent(s)

JUDGMENT

Dipak Misra, CJI.

In a hallowed democratic body polity, the seminal

requirement is fair and timely election. Purity of election

abandoning any kind of dogmatic idea is consubstantial to

sustain the fundamental concept of democracy which is a

basic feature of our Constitution. If the ‗thought of

democracy‘ is sullied, the cornerstone of the rule of law is

corroded. When an individual, bereft of his status, goes to

an election booth to cast his vote, he feels empowered and Signature Not Verified Digitally signed by dignified and his self-esteem is accentuated as his inner SUBHASH CHANDER Date: 2018.05.09 16:59:56 IST

conscience tells him that in his exercise of franchise, he is Reason:

2

choosing a representative who shall represent the

constituency. This is the very sense of feeling empowered.

The participation makes him realize his political right and

the collective feels that there shall be governance in accord

with the Constitution so that the individual rights are

protected and the collective aspirations are taken care of. It

has been said by many protagonists of democracy that an

atmosphere should always exist when precepts of

democracy remain safe.

2. The Constitution of India gives emphasis on many

aspects of political rights having regard to the rights of an

individual. Thus, in a democracy, holding of elections

becomes significant and the constitutional and statutory

provisions take care of it. Eligibility criteria has been

provided for to contest an election and sometimes more

restrictions are added in respect of elections to the local

self-governments. Delimitation and reservation of

constituencies are conceived of and fructified so that the

inclusive character of the Constitution is strengthened. The

provisions in the Representation of the People Act, 1951

(for brevity, ‗the Act‘) are engrafted to cover many aspects of 3

election including the manner, method of holding elections

and the grounds for setting aside the election. The Act also

obliges the competent authority to see to it that no

constituency remains unrepresented beyond a definite

period. It is because the elected representative is expected

to echo the concerns of the electoral college in entirety.

The voters cannot be deprived of the said right if the

statute confers such a protection. Though the right to

contest an election is not a fundamental right, yet no

interpretation should be placed on a statutory provision

that will defeat the essential purpose of representation.

3. The prefatory note has become a warrant as the

petitioner, a voter of Bhandara – Gondiya parliamentary

constituency, in this special leave petition, has, in an

astute manner, conceived a challenge by propounding that

the High Court has erroneously interpreted Section 151A

of the Act.

4. The elected representative, who was elected to the

aforementioned constituency in the General Election to the

Lok Sabha conducted on 04.06.2014, tendered his

resignation as the Member of Parliament under Article 4

101(3) of the Constitution read with Rule 240(1A) of the

Rules of Procedure and Conduct of Business in Lok Sabha

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 at Nagpur under Article 226 of the

Constitution in Public Interest Litigation No. 31 of 2018

contending, inter alia, that if the election commenced in the

month of May, 2018, the effective period which the new

incumbent would 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 and render service to the public

and further, there shall be huge expenditure in conducting

the election. He had drawn support from Report No. 255 of

the Law Commission of India on Electoral Reforms.

Reliance was placed on Section 151A of the Act to

substantiate the stand that holding of election was not

permissible under the said provision.

6. The High Court, scrutinizing the language employed

in Section 151A, opined that the argument advanced by the 5

petitioner was sans substance and resultantly dismissed

the Writ Petition.

7. We have heard Mr. Vikas Singh, learned senior

counsel along with Ms. Anangha S. Desai, learned counsel

for the petitioner.

8. The dates pertaining to the holding of election and the

resignation are not controverted. Further, it is not a case

where an election petition was pending against the elected

candidate before the High Court. It is also not in dispute

that the General Election to the Lok Sabha is to be held in

June, 2019.

9. The said being the undisputed factual position, we are

only required to analyse the statutory provisions and

justifiability of the holding of bye-election. Part IX of the Act

deals with Bye-Elections. Section 147 deals with casual

vacancies in the Council of States. Section 149 adverts to

casual vacancies in the House of the People. Section 150

states about casual vacancies in the State Legislative

Assemblies and Section 151 deals with casual vacancies in

the State Legislative Councils. Section 151A, which was

inserted by the Representation of the People (Amendment) 6

Act (21 of 1996) with effect from 01.08.1996, being relevant

for the present purpose, is extracted below:-

“151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and

151.—Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if—

(a) the remainder of the term of a member in relation to a vacancy is less than one year;

or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.‖

10. The aforesaid provision commences with a non

obstante clause and clearly states that notwithstanding

anything contained in Section 147, Section 149, Section

150 and Section 151, a bye-election for filling any vacancy

referred to in any of the said Sections shall be held within a

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 remainder of the term of a member in 7

relation to a vacancy is less than one year. It is further

postulated therein that if the Election Commission in

consultation with the Central Government certifies that it

is difficult to hold the bye-election within the said period,

the principal part of the provision contained in Section

151A would not apply. In the present case, we are not

concerned with the second postulate, for what has emerged

for consideration singularly pertains to the concept of

period.

11. It is submitted by Mr. Vikas Singh, learned senior

counsel for the petitioner that the prohibition contained in

Section 151A directly comes into play and, therefore, the

High Court would have been well advised to restrain the

Election Commission not to hold the election. It is further

propounded by him that the amount to be spent from the

exchequer on holding of an election ultimately casts a

burden on the tax payers and additionally, the elected

candidate will only have some ceremonial role since he

would not be in a position to do anything for the members

of the electoral college and, therefore, the election should

not be allowed to be conducted.

8

12. At the very outset, we must make a distinction

between Sections 147, 149, 150 and 151 on the one hand

and Section 151A of the Act on the other. While

interpreting these provisions, it has to be kept in mind that

though the right to elect a person is fundamental to

democracy, yet it is only a statutory right. It is also well

settled in law that the legislations governing the said right

have to be strictly construed.

13. A two-Judge Bench in D. Sanjeevayya v. The

Election Tribunal, Andhra Pradesh and others1, prior

to the insertion of Section 151A of the Act, was dealing with

the controversy that pertained to occurring of a casual

vacancy and, in that context, referred to the scheme of the

Chapter pertaining to bye-elections and analyzed Article

190(3) of the Constitution. The Court, referring to the said

Article and the various provisions of the statute and after

adverting to the fact situation where an election petition

was pending challenging the election, held:-

―4. We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of Section 150 of the Act must be interpreted in the context of Sections 84 and

1 AIR 1967 SC 1211 9

98(c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise, It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. …‖

Proceeding further, the Court ruled that when an

election petition has been referred to a tribunal by the

Election Commission and the tribunal is seized of the

matter, the petition has to be disposed of according to law.

The Tribunal has to adjudge at the conclusion of the

proceeding whether the returned candidate has or has not 10

committed any corrupt practice at the election and

secondly, it has to decide whether the second respondent

therein should or should not be declared to have been duly

elected. A returned candidate cannot get rid of an election

petition filed against him by resigning from the seat in the

Legislature, whatever the reason for his resignation may

be.

14. In this regard, reference to the authority in Election

Commission of India v. Telangana Rastra Samithi and

another2 is extremely useful. In the said case, the

respondent had challenged the decision of the Election

Commission of India not to hold the bye-elections in

respect of two Assembly Constituencies in the State of

Andhra Pradesh which was set aside by the High Court.

The High Court had quashed the action placing reliance on

Section 151A of the Act holding, inter alia, that the said

provision is mandatory especially when the vacancies had

already been notified by the Speaker of the Assembly as

contemplated under Article 190(3)(b) of the Constitution. It

is worth noting that the High Court had ignored the

2 (2011) 1 SCC 370 11

pendency of the election petitions against the candidates

who had resigned on the foundation that uncertain

consequences of the election petitions could not dilute the

effect of Section 151A of the Act. The two-Judge Bench,

scrutinizing the provisions of the Act and Article 190(3)(b),

stated:-

―45. The Act is a complete code for the conduct of elections by the Election Commission of India appointed under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections to Parliament and to the Legislature of every State and also of elections to the offices of President and Vice- President held under the Constitution. The provisions of Article 190(3)(b) of the Constitution have, therefore, to be read along with the provisions of the 1951 Act. Section 84 of the said Act cannot be rendered otiose by holding that all vacancies on account of the aforesaid provision of the Constitution become immediately available for being filled up by way of a bye-election. The same reasoning applies in regard to Section 151- A of the 1951 Act and its impact on the latter part of Section 84 thereof. As has been mentioned hereinbefore, a proceeding under Section 84 has to run its full course, particularly for the purposes of Section 8-A of the said Act. The views expressed by the Division Bench of the High Court on this point cannot, therefore, be sustained.‖

The Court went on to say that the introduction of

Section 151A did not alter the position as far as the 12

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 of Section

150 of the Act. The Court made a distinction between the

two categories of vacancies, namely, vacancies in which

election petitions had been filed and are pending and other

vacancies where no such cases were filed and pending.

The Court opined that in the first category of cases, the

vacancies could not have been treated to be available for

the purposes of filling up within the time prescribed under

Section 151A of the Act merely because a member of the

House of a Legislature of a State had resigned and the

same had been accepted by the Speaker. To arrive at the

said conclusion, emphasis was laid on Section 84 of the

Act. In the second category of cases, the Court pronounced

that the vacancies would have to be construed as clear

vacancies warranting action under Section 151A of the Act.

15. A Division Bench of the High Court of Karnataka in

Sri Thomas Mates Gudinho v. Election Commission of 13

India, New Delhi and others3 , while interpreting Section

151A of the Act, has opined:-

―13. … Section 151A no doubt seeks to ensure that no Constituency 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 a vacancy is less than one year or where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. Further the non obstante clause is limited in its application to Sections 147, 149, 150 and 151. The non obstante clause does not refer to Section 84 or 98(c) or 101. It therefore follows that Section 151A will have no application if an Election Petition is pending where the prayer is not merely a challenge to the election of the elected candidate, but also seeks a declaration that the petitioner or some one else should be declared as having been elected under Sections 84 read with Section 101 of the Act.‖

Be it noted, the said view has been approved in the

case of Telangana Rastra Samithi (supra).

16. In the case at hand, no election petition was pending.

The elected candidate tendered his resignation on

08.12.2017 and the same was accepted by the Speaker of

Lok Sabha on 14.12.2017. The command of Section 151A

is to hold the election within a period of six months from

the date of occurrence of the vacancy. As the factual score 3 AIR 2002 Kant 232 14

depicts, the vacancy occurred when the resignation was

accepted by the Speaker of Lok Sabha on 14.12.2017. It is

beyond any dispute that the next General Election to Lok

Sabha is in June, 2019. Therefore, the remainder of the

term is not less than one year. Whether the election is to

be held or not would be governed by clause (b) to the

proviso to Section 151A and we are not concerned with the

same. The ground raised that the code of conduct would

come into play before the elections are held in June, 2019

is absolutely sans substance as the Act does not

contemplate so. It is the period alone that should be the

governing factor subject to the pendency of election petition

because that is not controlled by the non obstante clause.

Such an interpretation is in accord with the sanctified

principle of democracy and the intention of the Parliament

is not to keep a constituency remaining unrepresented. The

concern expressed with regard to load on the exchequer

cannot be treated as a ground. It is so because the

representative democracy has to sustain itself by the

elected representatives. We may hasten to add that the

matter would be different when an election dispute is 15

pending against the candidate that comes within the ambit

and sweep of Section 84 or Section 98(c) or Section 101(b)

of the Act. That not being the case, the view 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.

……………………….....CJI.

(Dipak Misra)

………………………….….J. (A.M. Khanwilkar)

……………………………..J. (Dr. D.Y. Chandrachud) New Delhi;

May 09, 2018