Last week, the Election Commission announced bye-elections for three Assembly constituencies. Despite this, reports suggest that there are currently fourteen vacant seats in State Assemblies and six in Parliament where bye-elections have yet to be scheduled. As per Section 151A of the Representation of the People Act, 1951 (‘RP Act’), the Election Commission is mandated to conduct a bye-election within six months of a seat becoming vacant. Nonetheless, the Act specifies two exceptions: if the remaining term is less than a year, or if the Election Commission, after consulting the Union Government, certifies that conducting the bye-election within the prescribed period is challenging. Additionally, a third, judicially recognized exception has come into play in several cases of vacant seats.
Diverse Vacancy Categories
The Supreme Court recognized a third exception to Section 151A in Election Commission of India v. Telangana Rashtra Samiti (2010), stipulating that if an election petition contesting the previous election is pending, the seat cannot be deemed available for a bye-election. The Election Commission must await the petition’s resolution before proceeding with bypolls. This decision reconciles Section 151A, which sets the timeline for bye-elections, with Section 84, which allows a petitioner to challenge an election and seek a declaration of a different candidate being duly elected.
The Court distinguished between two types of vacancies: those with pending election petitions and those without. It ruled that vacancies in the first category cannot be filled under Section 151A until the petition is resolved, while those in the second can be filled as per the statutory timeline. This interpretation leaves the Election Commission no discretion; they must wait for the petition’s outcome before proceeding with a bye-election.
Rationale and Judicial Perspectives
This classification is justified as an election petition could result in another candidate being declared the rightful winner. Conducting a bye-election prior to this decision would render the declaration moot. It also avoids unnecessary election expenses and ensures that the constituency is represented by the candidate who should have originally been elected.
However, a different view emerged in Nitin Bandopant Salagre v. State Election Commission (2019). Here, the State Election Commission scheduled bypolls for a councillor’s office despite an ongoing election petition. Although the Court acknowledged Telangana Rashtra Samiti, it reached a different conclusion, asserting that the statutory scheme does not inherently prevent the State Election Commission from addressing a casual vacancy due to an election petition’s filing.
The Court clarified, “the statutory Scheme does not indicate that by mere filing of an election petition questioning the election of returned candidate of ward and seeking a declaration in favour of the election petitioner shall ipso facto put an embargo in the right of State Election Commission to proceed to fill up the casual vacancy.” In this case, the Court favored maintaining constituency representation, offering administrative flexibility, unlike the earlier approach that emphasized electoral mandate integrity.
Implications of Delayed Election Petitions
The interpretation in Telangana Rashtra Samiti prioritizes electoral process integrity and the chance to uphold the true electoral mandate. However, vacant seats raise an opposing concern: timely representation for every constituency. The Supreme Court’s stance assumes that election petitions will be resolved reasonably promptly to balance both interests. This assumption aligns with the RP Act, which suggests election petitions be resolved expeditiously, within six months if possible. In reality, this timeline is often not met.
Election petitions frequently linger for years, sometimes outlasting the concerned House’s term. By the time a resolution is reached, new elections often render the dispute moot. Even when election petitions are resolved quickly, appeals can prolong litigation. In a recent case, the Madras High Court criticized the Supreme Court for a six-year delay in resolving an election petition, which outlasted the Assembly’s term and two subsequent elections.
The High Court stated, “13. The Hon’ble Supreme Court, after keeping the matter pending for about six years, thought fit that the question has to be kept open in view of the lapse of time and the term of office having expired and no useful purpose would be served in adjudicating upon the said question in the Civil Appeal. With great respect, the Hon’ble Apex Court should have answered this question since this Court has already as Court of first instance/trial Court given a finding in respect of the above question.” Such delays disadvantage not only the candidate but also the constituency, which lacks representation in legislative matters.
In 2024, the Supreme Court remarked that “the provisions of Section 151A of the Representation of the People Act, 1951 would need interpretation.” However, the issue remains unresolved, with no substantive hearings conducted since.
Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy. Views are personal.
