New Delhi: The Punjab and Haryana High Court Wednesday dismissed a petition seeking directions to set aside the Election Commission of India’s (ECI) 16 March notification announcing the bypolls for Haryana’s Karnal assembly seat. Notably, the high court’s stance completely differed from Bombay High Court’s stance on a similar issue.
The Karnal seat had fallen vacant on 13 March following the resignation of the former chief minister, Manohar Lal Khattar. His departure was followed by the successful floor test by Nayab Singh Saini’s government in the state legislative assembly.
The Bharatiya Janata Party (BJP) has nominated Saini to contest the Karnal assembly seat. To retain his position as chief minister, Saini is required to secure election to the assembly within six months. The bypolls in the state are scheduled to be held on 25 May along with the Lok Sabha elections in Haryana.
The Punjab & Haryana High Court was addressing a petition challenging the ECI decision to hold the bypoll for the Karnal seat, arguing that the by-election was not permissible according to the proviso “a” of the Representation of People Act, 1951 (RP Act) because the term of the elected lawmaker would be less than one year.
In doing so, the Punjab and Haryana High Court said that, despite the remainder of the term being less than one year, the elections must be held.
The high court clarified that the ECI’s authority remains intact despite the time constraints stipulated by law, and the fact that the remaining term is under one year does not constitute a valid reason to cancel the scheduled election.
Notably, the Punjab and Haryana High Court judgment was in stark contrast to the Bombay High Court’s interpretation of proviso “a” of section 151A, which had in March directed ECI to withdraw its notification to hold a bypoll in the Akola West assembly seat in Maharashtra’s Vidarbha, stating that the time left before the end of the term of the assembly was less than one year.
“In terms of the RP Act, the elections cannot be held,” the Bombay HC had declared.
The RP Act mandates the ECI to call upon the assembly to fill any casual vacancies in state assemblies for reasons such as resignation and death. Section 151A specifically provides an upper limit of six months to conduct elections for such vacancies despite any other provision to the contrary.
Notably, proviso (a) of section 151A says: “Provided that nothing contained in this section shall apply if… the remainder of the term of a member in relation to a vacancy is less than one year.”
Amid the difference of opinion on the interpretation of Section 151A by the two high courts, an authoritative interpretation before the Supreme Court is also pending, which will settle the question of whether elections can be held in such scenarios.
The variance in the opinion of the two high courts is not just on the interpretation of proviso “a” of Section 151A of the RP Act. They also look at the 2019 decision of the Bombay High Court differently.
In the 2019 judgment, the Bombay High Court had said that it was not mandatory for the ECI to conduct polls if the assembly’s term were to end in less than one year.
However, the court had then restricted its observations to whether the time (as required by Section 151A) was mandatory. Moreover, it did not say that the elections need not be conducted but left the question of the conduct of elections open, based on “facts and circumstances” and the relevant facts and reasons given by the EC to hold elections.
Also Read: Haryana CM Saini’s election to assembly in limbo after HC order quashing Akola West bypoll
‘No hesitation in setting aside elections’
In March, the Bombay High Court quashed the ECI notification for by-elections due to a vacancy because the period for the assembly left was less than one year. In this case, the Akola West seat had fallen vacant due to the death of MLA Gowardhan Mangilal Sharma on November 3, 2023, following which the ECI announced a bypoll to fill the vacancy.
This notification was challenged before the Bombay High Court.
Responding to a contention of what would be an appropriate stage for the calculation of the timeline (for a period of one year), the court cited the 2019 decision to say that the relevant test of the remaining period of the assembly was met in the case.
Since the term left was less than one year, the Bombay High Court in March directly set aside the bypoll citing the 2019 decision without giving definite reasons for its decision for such an interpretation of the proviso.
“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 by-election, we have no hesitation to hold that the impugned notification…is contrary to proviso (a) to Section 151A of the Act of 1951,” the high court said.
“We further declare that by-elections for the said constituency shall not be held,” it added.
‘Lesser time is no ground for not holding elections’
Meanwhile, the petition in the Punjab & Haryana High Court filed by Kunal Chanana contended that Section 151A of the RP Act bars the conduct of elections in Haryana due to the impending state assembly elections scheduled for later this year.
Though the EC had already announced the bypolls, Chanana relied on Bombay High Court’s March and 2019 judgments to contend that the decision to conduct bypolls was bad in law.
Chanana claimed that after the ECI had announced through a press release that it would not conduct elections in Akola, the same should have been followed in this case, adding that it is “arbitrary and discriminatory” to not follow the same in this case.
Since the newly-elected candidate would virtually have only two months to discharge his functions, Chanana contended that the same is not permissible under proviso “a” of section 151A of the RP Act and also a great cost to the public for a short tenure.
However, the Punjab & Haryana High Court refused to accept an interpretation such as one accepted by the Bombay High Court in the case of by-polls in Akola. It held that the 2019 case said that there was no hard and fast rule for the non-conduct of elections and it was a case-to-case determination to be undertaken by the court.
The court clarified that, while the Bombay High Court referenced the 2019 decision when it cancelled the elections, it did not consider a portion of analysis from 2019 that the decision to hold elections should be based on the particular facts and circumstances of each case.
The court also said the March Bombay High Court order “appears to be contrary” to the 2019 decision.
It added that the purpose of providing an upper limit for the conduct of elections is to ensure all seats in the legislature are represented, and not to avoid the expense of elections to the state, as contended by the petitioners.
“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 [sic]”, the court said.
“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,” it added.
The upper limit provided by Section 151A is an exception and not the rule, which remains to be the conduct of elections, the court highlighted.
(Akshat Jain is a student at the National Law University, Delhi, and an intern with ThePrint)
(Edited by Richa Mishra)