Haryana CM Nayab Singh Saini Obligated To Get Elected As MLA Within 6 Months, Karnal By-Election Facilitates It: High Court

The Punjab & Haryana High Court today, dismissed the plea challenging the notification issued by the Election Commission of India (ECI) to hold a bye-election for Haryana's Karnal constituency in May, observing that new Chief Minister is obligated to to get himself elected as a member of the State Legislative Assembly within six months of taking oath as per the constitutional mandate and the bye-election facilitates it.

The seat had fallen vacant on March 13 after former CM Manoharlal Khattar resigned.

The bye-election notification was challenged on the ground that it is violative of Section 151 (A) of the Representation of People's Act, 1951 because as per the proviso of the Section bye-election cannot be conducted for the seat when the remainder of the term of the member in relation to a vacancy is less than one year. The Haryana Assembly was formed on November 4, 2019, and it is completing its term on November 3, 2024, which means less than one year is remaining for completion of term.

The new Chief Minister Nayab Singh Saini from BJP is contesting from Karnal as he is not a member of the Legislative Assembly and as per Article 164(4) of the Constitution, "a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister."

A division bench of Justice Sudhir Singh and Justice Harsh Bunger said, "The new Cabinet under Shri Naib Singh Saini, Chief Minister, took oath on 12.03.2024 and since Shri Saini is not a member of the Legislative Assembly, therefore, in terms of Article 164(4) of the Constitution of India, he is obligated to get himself elected as a member of the State Legislative Assembly within six months of taking oath as the Chief Minister i.e. within six months from 12.03.2024."

The bench further noted that the Karnal constituency is the only vacancy available for holding of bye-election and considering the fact that the remainder term of the new incumbent Chief Minister being less than one year and the vacancy being available, no fault can be found with the ECI notification.

It added that ECI "only facilitated the mandate of Article 164(4) of the Constitution of India."

The Court also raised concern that if the elections are not to be held in relation to the vacancy of Karnal, as sought to be contended by the petitioner, the result would be that the said constituency shall remain unrepresented until the determination of the term of the State Legislative Assembly i.e. in November, 2024, despite the availability of the vacancy. 

Kunal Chanana, a resident of Karnal had filed the plea challenging the ECI notification issued on March 16, for holding bye-election of the Haryana's Constituency Assembly Karnal. The petitioner had also sought interim relief for staying operation of the impugned Notification, during the pendency of the present writ petition.

It was argued that the result of the bye-election, as per the stipulated schedule, is slated for declaration on June 04, with the legislative assembly's term set to expire on November 3. Prior to the said expiration date, the implementation of the code of conduct would be necessitated in the State of Haryana for conducting the fresh general elections and in this way, the new candidate will have only two effective months to discharge his duties.

While referring to the provisions of Section 151A of the Act, it was contended that the tenure of the vacancy in question is less than one year and therefore, in terms of Proviso (a) to Section 151A of the RPA, the impugned Notification could not have been issued the ECI and the same is bad in law, the petitioner submitted.

Merely Because Remainder Of Term Is Less Than One Year, Is No Ground To Debar ECI From Holding Bye-Election

After hearing the submission the Court referred to Section 150 of RPA and noted that "whenever a casual vacancy occurs in the State Legislative Assembly, the Election Commission shall by a notification in the Official Gazette, call upon the Assembly Constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification."

However, it is noticeable that the aforesaid provision of Section 150 does prescribe any time limit for such vacancy to be filled up by the Election Commission. Now, Section 151A prescribes a time limit within which a bye- election is to be held to fill up any vacancy referred to in Sections 147 and 149 to 151 of the Act, added the Court.

Referring to Section 151A of RPA, the Court noted that the holding of election within a specified time of six months is subject to two exceptions, namely, where the remainder of the term of a member to be elected in relation to a vacancy is less than one year and where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the by-election within the said period, then the principal part of the provision contained in Section 151A would not apply.

The Court explained that the objective behind Section 151A of the Act, is not to leave any vacancy unfilled or any constituency unrepresented and which is why six months' period has been so provided.

"The non-obstante clause in Section 151A of the Act, has an objective to achieve i.e. no seat of any constituency within the State should be left unrepresented. However, the language used in proviso (a) to Section 151A of the Act, as regards non-applicability of the provisions of Section 151A to it, if interpreted strictly, would defeat and oust the very objective," added the bench.

The only purpose as could be supposed from a plain reading thereof, is not to put the election machinery in place to avoid any expenses or resources, and except that, there seems to be none. It is settled law that non-obstante clause cannot be construed to take away the effect of any provision of the Act in which that section appears, it added.

It further clarified that the non-obstante clause is not applicable to the Constitutional provisions and it is clarificatory in nature and does not limit the operation of the original statute.

The bench said that it is inserted by way of an abundant caution and not for limiting the operation of the original statute and that it cannot cull down the scope and objective of the original statute.

Hence, the Court opined that in the present case proviso (a) to Section 151A of the RPA, is an exception and not a rule and thus, liberal interpretation is required.

"The situation might have been different, had there not arisen any vacancy. Merely because the remainder of the term is less than one year, is no ground to debar the Election Commission of India, from holding the bye-election," the Court observed.

"Proviso (a) to Section 151A of the Act, is an exception and not a rule and thus, in our considered view a liberal interpretation thereof is required. The situation might have been different, had there not arisen any vacancy. Merely because the remainder of the term is less than one year, is no ground to debar the Election Commission of India, from holding the bye-election," the Court concluded.

Furthermore, it considered whether in the given facts of the case, the mandate of Article 164(4) of the Constitution of India, is a valid consideration to examine the legality of the impugned notification?

Reliance was placed upon Supreme Court's decision in Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and another, [1971(1) SCC 616], wherein the issue arose in connection with the appointment of Shri T.N. Singh, who was not a member of either house of Legislature of the State of Uttar Pradesh, as Chief Minister of Uttar Pradesh.

The Constitution Bench referred to the position as prevailing in England. It was observed that invariably all Ministers must be members of the Parliament but if in some exceptional case, a Minister, is not a member of the Parliament, he can continue to be a Minister for a brief period during which he must get elected in order to continue as a Minister, noted the Court.

The bench said a natural consequence emanating from the aforesaid provisions contained in Article 164(1), (2) and (4) of the Constitution of India is that where a person is appointed as a Minister/Chief Minister in a State and such person is not an elected member to the State Legislative Assembly, then in order to continue on the said post, such candidate has to seek election to such Assembly seat within a period of six months from the date he or she takes oath.

It highlighted that Manohar Lal Khattar, the previous Chief Minister, had tendered his resignation along with his council of Ministers in March. Subsequently, Khattar, who was elected as a Member of Legislative Assembly, from Karnal, resigned from his seat itself, thereby making the said seat vacant.

The Court added that the new Cabinet under CM Naib Singh Saini, who took oath on March 12 and is not a member of the Legislative Assembly, therefore, in terms of Article 164(4) of the Constitution of India, he is obligated to get himself elected as a member of the State Legislative Assembly "within six months of taking oath as the Chief Minister i.e. within six months from 12.03.2024."

It noted that Karnal constituency is the only vacancy available for holding of bye-election and considering the fact that the remainder term of the new incumbent Chief Minister being less than one year and the vacancy being available, no fault can be found with the impugned notification of ECI as regards the Karnal constituency, as it only facilitates the mandate of Article 164(4) of the Constitution of India, the Court said.

In the light of the above, the Court held that the provision of Article 164(4) is a valid consideration for the Election Commission of India, for declaring holding of election for the vacant seat of a constituency in the State Legislative Assembly

Consequently, the plea was dismissed.

Simar Pal Singh, Advocate, for the petitioner

Prateek Gupta, Advocate, for respondent No.1.

Baldev Raj Mahajan, Advocate General, Haryana, assisted by Naveen S. Bhardwaj, Addl. AG, Haryana.

Samarth Sagar, Addl. AG, Haryana.

Manish Dadwal, AAG, Haryana, for respondent Nos. 2 and 3.

Citation: 2024 LiveLaw (PH) 103

Kunal Chanana v. Election Commission of India and others

Click here to read/download the order