The Supreme Court recently reserved judgment on the interpretation of Section 151A of the Representation of the People Act, 1951, which prescribes a six-month period for holding bye-elections to fill casual vacancies in Parliament and State Legislatures, subject to certain exceptions.

A bench of Justice Vikram Nath, Justice Augustine George Masih and Justice Sandeep Mehta reserved the judgment in the Election Commission of India's plea challenging a December 2023 Bombay High Court judgment directing it to hold a bye-election for the Pune Lok Sabha constituency.

Section 151A provides that a bye-election to fill a casual vacancy "shall be held within a period of six months from the date of the occurrence of the vacancy." However, the proviso states that the provision will not apply if "the remainder of the term of a member in relation to a vacancy is less than one year." A further exception applies where the Election Commission, in consultation with the Central Government, certifies that it is difficult to hold the bye-election within the six-month period.

The question is from what point the one-year period under the first exception is to be calculated. The Bombay High Court held that the relevant date is the date on which the vacancy occurs. The Pune Lok Sabha seat fell vacant on March 29, 2023 while the term of the 17th Lok Sabha was due to expire over 14 months later on June 16, 2024. The High Court held that the one-year exception in Section 151A did not apply a bye-election had to be conducted.

The ECI has contended that the six-month period available to the ECI for conducting the bye-election has to be accounted for while determining whether the one-year exception applies.

The issue arose from the vacancy in the Pune Lok Sabha constituency following the death of sitting MP Girish Bapat on March 29, 2023. The term of the 17th Lok Sabha was due to end on June 16, 2024.

The ECI declined to hold a bye-election, issuing a certificate under Section 151A stating that it was difficult to conduct the election. It cited, among other reasons, its engagement with elections and preparations for the 2024 Lok Sabha elections and the fact that the candidate elected in a bye-election would have only a limited period in office.

Pune resident and voter Sughosh Joshi challenged the ECI's decision before the Bombay High Court. He argued that Section 151A required the vacancy to be filled within six months and that the constituency could not remain without parliamentary representation.

On December 13, 2023, the High Court directed the ECI to conduct the bye-election. The High Court held that the one-year exception in Section 151A did not apply because the vacancy had occurred on March 29, 2023 and more than one year of the Lok Sabha's term remained on that date. It held that the date of occurrence of the vacancy was the only relevant date for determining whether the remainder of the term was less than one year.

The High Court observed that the command of Section 151A was to hold the election within six months of the occurrence of the casual vacancy where the remainder of the term was at least one year, calculated from the date of the vacancy.

The Bombay High Court rejected the ECI's contention that the limited tenure that would remain for the returned candidate justified not holding the bye-election. It held that the ECI could not adopt a "sliding scale" under which months could be allowed to pass after a vacancy and the remaining period could then be relied upon as a reason not to conduct the election.

The High Court also rejected the ECI's reliance on difficulty due to being busy with preparations for the 2024 Lok Sabha Elections. It held that the expression "difficulty" in Section 151A could not be interpreted to mean administrative inconvenience or the preoccupation of ECI personnel with other elections. The High Court stressed that a constituency could not be left unrepresented because the ECI was otherwise occupied.

The Supreme Court, however, stayed the High Court's direction in January 2024 and observed that the interpretation of Section 151A would require consideration.

The factual question concerning the Pune seat is no longer a live issue because the 17th Lok Sabha's term ended on June 16, 2024, and a new Lok Sabha has been elected since then.

During the proceedings before the Supreme Court, the ECI has maintained that the one-year period should be considered after accounting for the six-month period available for conducting the bye-election.

The respondents have challenged this approach and emphasised the statutory right of a constituency to representation. They have also claimed that the ECI has applied Section 151A inconsistently in deciding whether to hold bye-elections for different vacancies.

Thus, the question to be decided by the Supreme Court is whether the ECI is bound to conduct the bye-election if a legislative seat falls vacant with more than one year remaining in the term but the passage of the six-month statutory period would bring the period below one year.

The Supreme Court has now reserved judgment in the matter.

Appearance –

For Petitioners: Mr. Dama Seshadri Naidu, Sr. Adv. Mr. Prateek Kumar, AOR Mr. Devansh Rai, Adv. Mr. Deepak Sharma, Adv. Ms. Nishtha Kaura, Adv. Mr. Kartikey Singh, Adv. Ms. Shriya Jadhav, Adv. Mr. Sahil Sood, Adv.

Mr. Kaushik Laik- 2266, AOR Mr. Ashay Kaushik, Adv. Mr. Shashank Tiwari, Adv.

Mr. Uday Bhatia, Adv. (VC) Mr. Muhammad Ali Khan, Adv. Mr. Omar Hoda, Adv. Ms. Eesha Bakshi, Adv. Mr. Kamran Khan, Adv. Mr. Surya Kiran, Adv. Mr. Aviral Jain, Adv. Ms. Ayesha Khan, Adv. Mr. Abishek Jebaraj, AOR

For Respondents: Mr. Tushar Mehta, Solicitor General (NP) Mr. K.M. Nataraj, A.S.G. Mr. Gurmeet Singh Makker, AOR Ms. Sansriti Pathak, Adv. Mr. Madhav Singhal, Adv. Mr. Anuj Udupa, Adv. Ms. Rajeshwari Shankar, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Vatsal Joshi, Adv. Mr. Aman Mehta, Adv.

Mr. Ritin Rai, Sr. Adv. Mr. Siddhartha Jha- 2286, AOR Ms. Ankita Gupta, Adv. Mr. Sayan Bhattacharya, Adv. Mr. Dayaar Singla, Adv. Ms. Nayanika Singhal, Adv. Mr. Kushal Mor, Adv. Ms. Shraddha Deshmukh, Adv.

Mr. Prateek Kumar- 3140 , AOR