India: No By-Election If Remainder Term Is Less Than A Year; Bombay HC Quashes EC's Notification For Akola West Constituency

In a significant decision, the Bombay High Court on Tuesday quashed and set aside a notification by the Election Commission of India dated March 16, 2024. The said notification was issued for declaration of the by-election for Akola West assembly constituency in April.

Division bench of Justice Anil Kilor and Justice MS Jawalkar at Nagpur, held that since in this case, the remainder term for any incoming member would be less than a year, the said notification is contrary to Section 151 A of the People's Representation Act, 1951.

Case Background

One Gowardhan Mangilal Sharma was elected from the Akola West Constituency on October 24, 2019. The term of the Maharashtra Legislative Assembly commenced from November 27, 2019 and would end on November 25, 2024. However Mr. Sharma passed away on November 3, 2023 and the seat fell vacant.

Consequently, the Election Commission issued the impugned notification declaring April 26 as the date of polling for the said seat.

Now, Section 151-A of the Act of 1951 deals with the time limit for filling vacancies referred to under Sections 147, 149, 150 and 151 of the Act of 1951. This provision mandates that, the bye-election for filling any vacancy shall be held within a period of six months from the date of occurrence of the vacancy.

Whereas, proviso (a) to Section 151-A of the Act of 1951 says that nothing contained in Section 151-A shall apply if the remainder of the term of a member in relation to a vacancy is less than one year.

Submissions

Advocate Neerja Choube appeared on behalf of the Election Commission and submitted that an issue as regards interpretation of Section 151-A of the Act of 1951 is pending before the Supreme Court of India in Special Leave to Appeal (C) No. 200 of 2024, in the case of Election Commission of India ..vs.. Sughosh Joshi & Anr. Therefore, she urged the Court to wait till a decision is taken in the said matter. She also argued that the period of one year for an incoming member shall be counted from the date of occurrence of the vacancy.

On the other hand, Advocate AA Naik appeared for the petitioner. While opposing his opponent's submission, he placed reliance on the judgment of the Supreme Court in the case of Union Territory of Ladakh and others ..vs.. Jammu and Kashmir National Conference and another, reported in 2023, wherein the Apex Court has made it clear that the High Courts will proceed to decide the matters on the basis of the law as it stands. It is not open, unless specifically directed by the Apex Court, to await an outcome of a reference or a review petition, as the case may be.

Judgement & It's Impact

Finally, after considering the submissions on behalf of both sides, the bench observed-

"In the circumstances, as the period of less than one year is left as a balance term an incoming member would get from the date of declaration of the result of the bye-election, we have no hesitation to hold that the impugned notification dated 16/03/2024 issued by the respondent No.1 is contrary to proviso (a) to Section 151-A of the Act of 1951."

Accordingly, the said notification was quashed and set aside. This judgement is likely to have an impact on the Election Commission's declaration of by-elections in other constituencies such as the Karnal assembly constituency in Haryana, where the situation is similar as assembly elections will be held in November this year.

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