When Can ECI Choose Not To Hold Bye-Election? Supreme Court To Interpret S.151A RP Act

The Supreme Court is set to consider issues pertaining to the interpretation of Section 151A of the Representation of People Act, which provides that bye-polls be conducted to fill up within 6 months a post that falls vacant in the Lok Sabha, Rajya Sabha or the State Legislative Assemblies/Councils.

Notably, Section 151A contains a proviso, as per which ECI need not hold bye-elections for a vacant seat if the remainder of the term in relation to the vacancy is less than 1 year. One of the issues arising in the case therefore is - from what date the 1-year period is to be reckoned: the date the post falls vacant, a date after the expiry of the 6-month period, or any other date?

On Augsut 4, A bench of Justices Vikram Nath and Sandeep Mehta heard y the ECI's challenge to a Bombay High Court order, which held that the 1 year period is to be reckoned from the date when the post falls vacant and ECI must conclude the elections within the 6 month period.

This order was passed by the High Court in December 2023, directing the ECI to conduct bye-elections for filling up the Pune Lok Sabha post after it fell vacant due to the demise of MP Girish Bapat. In January 2024 however, the Supreme Court stayed the High Court order, noting that Section 151A was attracted.

During the hearing, the Court made it clear that it will only be considering the legal issue.

Senior Advocate Dama Seshadri Naidu, for ECI, submitted that the provision (S.151A) needs to be interpreted by the Court. "We are also willing for that, because it has some ambiguity which needs to be resolved", he said. The senior counsel further submitted that under the Act, the ECI has leeway to hold the elections within the 6-month period and a time of 2 months is also stipulated as the minimum preparatory period. 

He further argued that in cases where there is an election petition pending, ECI may be precluded from holding elections until the matter has been disposed of by the concerned High Court.      

On the bench asking about the ECI's stance, Naidu said that the 1 year period must be reckoned after accounting for the 6-month period. He stated that if there is a long gap after a post falls vacant, there is no issue. However, for cases where the 1-year period may cut close, the court may have to lay guidelines. ECI is not shying from holding elections, but statutory limitations must not be crossed, he said.

With regard to the Bombay High Court decision, Naidu pointed out that in another case (Sandeep Sarode v. ECI), the ECI decided to hold the polls but a co-ordinate bench of the High Court took a different view and interdicted the decision.

Senior Advocate Dr Abhishek Manu Singhvi, appearing in a connected case, contended that the right of the electorate to be represented must have an overarching effect on the proviso to Section 151A, which was considered in the impugned decision as mandatory. He asserted that the proviso is not mandatory.

Singhvi further questioned how the High Court could interdict a decision taken by the ECI within 6 months to hold elections. He underlined that if the ECI notifies an election in the last week of the 6-month period, and the High Court interdicts the decision because the 1-year period is cutting close, the electorate would end up being deprived of representation for 18 months. It was further claimed that 4 High Courts have taken a view on these lines and a different view was taken only in the Sandeep case (which is distinguishable).

Senior Advocate Ritin Rai, for the respondent in the Pune case, highlighted that the provision offers far-reaching powers to the ECI. He alleged that the ECI has been indulging in a pick-and-choose when it comes to holding bye-elections. Pointing towards the recent bye-election results of Madhya Pradesh, Gujarat and Bihar, he underlined that the ECI did not hold bye-elections for seats that fell vacant in Assam (one), West Bengal (two) and Karnataka (one).

Rai flagged that one of the issues is how the ECI is interpreting the provision differently for different bye elections. On facts, the senior counsel pointed out that the Lok Sabha seat for Pune constituency fell vacant in March 2023, but on as late as August 11, 2023, the ECI wrote to the Governor that bye-elections could not be held. Moreover, on the same day, the Centre accepted the position.

That is, though there was more than 1 year left until the next general election, the ECI waited until August 2023 to ultimately deny holding the elections on administrative grounds (citing that less than 1 year was left for the General Election). He further alleged that there was no effective consultation before the decision was taken, nor any communication to the public.

Case Title: ELECTION COMMISSION OF INDIA Versus SUGHOSH JOSHI AND ANR., SLP(C) No. 200/2024