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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)    

J U D G M E N T  

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  

dignified and his self-esteem is accentuated as his inner  

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

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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

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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

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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

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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)

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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