SC Issues Notice To Election Commission On A Petition Challenging Holding Of By-election When Remainder of The Term Is Less Than A Year

The Supreme Court bench of Justices J.Chelameswar and S.Abdul Nazeer, on Friday, issued notice to the Election Commission on an SLP filed by Nagaland Pradesh Congress Committee against the Gauhati High Court’s judgment permitting the Election Commission to hold a by-election to  10th Northern Angami-1 (ST) Assembly Constituency in Nagaland, which became vacant on May 24.  Subsequently, the E.C. has proceeded to hold the by-election to the seat on July 29.

The Supreme Court, while issuing notice, has held that the results of the by-election would be subject to its decision in the case.

The appellant has challenged that E.C.’s power to hold the by-election on the ground that since remainder of the term of a member in relation to a vacancy is less than one year, bye-election to fill up the vacancy is uncalled for.  In support of this submission, the appellant referred to Section 151-A of the Representation of the People Act, 1951. Another ground of challenge was that no provision for Voter Verifiable Paper Audit Trial has been made to ensure free and fair election.

Both  the Single Judge at Kohima and the Division bench of the High Court disagreed with the appellant and dismissed the writ petition.

Section 151-A of the Representation of the People Act reads as under:

“151-A. 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.

The High Court held that a bare reading of the above quoted Section makes it clear that there is no bar on the Election Commission of India to fill up the casual vacancy even if the remainder of the term of a member in relation to a vacancy is less than one year.

The High Court’s Division Bench held as follows:

“Proviso (a) to Section 151 is merely an exception to a statutory mandate that bye-election for filling up casual vacancy must be held within a period of six months from the date of occurrence of the vacancy. The proviso does not say that no bye-election shall be held to fill up a vacancy if the remainder of the term of a member in relation to a vacancy was less than one year.”

The High Court’s Division Bench further observed:

“The bye-election in question has been duly notified. We hope and trust that Election Commission of India has taken all steps to ensure free and fair election. Even otherwise, there is no material on record to suggest that Election Commission of India is not vigilant to ensure free and fair election. If after the bye-election the appellant has material to establish that election was not free and fair, he can resort to remedy provided under the Representation of the People Act, 1951. At this stage, when the bye-election has been notified, we are not inclined to admit the writ appeal. It is accordingly dismissed.”