PRAMOD LAXMAN GUDADHEversusELECTION COMMISSION OF INDIA AND ORS.

                         [2018] 4 S.C.R. 397                              397


                 PRAMOD LAXMAN GUDADHE                                    A

                                  v.

        ELECTION COMMISSION OF INDIA AND ORS.

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

                            MAY 09, 2018

         [DIPAK MISRA, CJI, A. M. KHANWILKAR
            AND DR. D.Y. CHANDRACHUD, JJ.]
                                                                          C
       Representation of People Act, 1951 – s.151A – Interpretation
of – Justifiability of holding bye-election – On resignation of elected
representative of constituency in question, the petitioner, public
spirited person filed PIL contending that if the election commenced
in the month of May 2018, the effective period which the new              D
incumbent would get would be only upto March 2019 that is less
than one year and therefore the new incumbent would not be in a
position to function with all vigour and render service and there
shall be huge expenditure in conducting the election – High Court
dismissed the writ petition – Held: There was no election petition
pending in the instant case – The elected candidate tendered his          E
resignation on 08.12.2017 and the same was accepted by the
Speaker of Lok Sabha on 14.12.2017 – The command of s.151A is
to hold the election within a period of six months from the date of
occurrence of the vacancy – The next General Election to Lok Sabha
is in June, 2019 – Therefore, the remainder of the term is not less
                                                                          F
than one year – 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        G
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
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                                 397
398            SUPREME COURT REPORTS                      [2018] 4 S.C.R.


A     sustain itself by the elected representatives – High Court was right
      in dismissing the writ petition – Election laws.

            Dismissing the special leave petition, the Court

             HELD: 1. Section 151A commences with a non obstante
B     clause and clearly states that notwithstanding anything contained
      in Sections 147, 149, 150 and 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,
C     that the remainder of the term of a member in relation to a vacancy
      is less than one year. There is 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
D     also well settled in law that the legislations governing the said
      right have to be strictly construed. [Paras 10, 12][402-D-E; 403-
      B]

            2. In the case at hand, no election petition was pending.
E     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 depicts, the vacancy occurred when
      the resignation was accepted by the Speaker of Lok Sabha on
F     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. 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
G     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

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PRAMOD LAXMAN GUDADHE v. ELECTION COMMISSION                           399
             OF INDIA AND ORS.

constituency remaining unrepresented. The concern expressed            A
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. The matter would
be different when an election dispute is pending against the
candidate that comes within the ambit and sweep of Section 84 or
                                                                       B
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. [Para 16][406-C-G]

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

      Sri Thomas Mates Gudinho v. Election Commission of
      India, New Delhi and Others AIR 2002 Kant 232 –
      approved.
                                                                       D
      D. Sanjeevayya v. The Election Tribunal, Andhra
      Pradesh and others AIR 1967 SC 1211 : [1967] SCR
      489 – referred to.

                       Case Law Reference                              E

      [1967] SCR 489             referred to           Para 13

      [2010] 14 SCR 468          relied on             Para 14
                                                                       F
      AIR 2002 Kant 232          approved              Para 15

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

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

     Vikas Singh, Sr. Adv, Ms. Anangha S. Desai, Mehmood Umar
Faruqui, Satyajit A. Desai, Advs for the Petitioner.
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400             SUPREME COURT REPORTS                              [2018] 4 S.C.R.


A            The 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 election
      abandoning any kind of dogmatic idea is consubstantial to sustain the
      fundamental concept of democracy which is a basic feature of our
B     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 dignified
      and his self-esteem is accentuated as his inner conscience tells him that
      in his exercise of franchise, he is choosing a representative who shall
      represent the constituency. This is the very sense of feeling empowered.
C     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
D     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
E     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 election including the manner, method
F     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
G     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

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 PRAMOD LAXMAN GUDADHE v. ELECTION COMMISSION                                    401
       OF INDIA AND ORS. [DIPAK MISRA, CJI]

leave petition, has, in an astute manner, conceived a challenge by               A
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               B
Parliament under Article 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               C
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        D
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           E
151A, opined that the argument advanced by the 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.
                                                                                 F
       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.
                                                                                 G
       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
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402             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


A     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) Act (21 of 1996) with effect from 01.08.1996, being
      relevant for the present purpose, is extracted below:-
B            “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:
C
             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
D                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
E     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 relation to a vacancy is less than one year. It
      is further postulated therein that if the Election Commission in consultation
F     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
G
      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
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    PRAMOD LAXMAN GUDADHE v. ELECTION COMMISSION                                     403
          OF INDIA AND ORS. [DIPAK MISRA, CJI]

additionally, the elected candidate will only have some ceremonial role              A
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.
        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                 B
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                       C
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            D
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 98(c) and
         other relevant provisions of Part III of the same Act. If the               E
         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      F
         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                G
         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
1
    AIR 1967 SC 1211
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404               SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A              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. …”
B            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 committed any corrupt
      practice at the election and secondly, it has to decide whether the second
C     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
D     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
E     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 pendency of the election petitions against
      the candidates who had resigned on the foundation that uncertain
F     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
G              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
      2
          (2011) 1 SCC 370
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PRAMOD LAXMAN GUDADHE v. ELECTION COMMISSION                                       405
      OF INDIA AND ORS. [DIPAK MISRA, CJI]

         provisions of Article 190(3)(b) of the Constitution have, therefore,      A
         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
                                                                                   B
         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              C
did 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 of
Section 150 of the Act. The Court made a distinction between the two
categories of vacancies, namely, vacancies in which election petitions             D
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               E
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                   F
Thomas Mates Gudinho v. Election Commission of 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.           G
      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

3
    AIR 2002 Kant 232
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406              SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A            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
B
             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).
C            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 depicts, the
D     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
E     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
F     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 pending against
G     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.
H     Devika Gujral                                               Petition dismissed.