Case: PRAMOD LAXMAN GUDADHE Vs. ELECTION COMMISSION OF INDIA

3. The prefatory note has become a warrant as the petitioner, a voter of Bhandara – Gondiya parliamentary constituency, in this special leave petition, has, in an astute manner, conceived a challenge by propounding that the High Court has erroneously interpreted Section 151A of the Act.4. The elected representative, who was elected to the aforementioned constituency in the General Election to the Lok Sabha conducted on 04.06.2014, tendered his resignation as the Member of Parliament under Article 101(3) of the Constitution read with Rule 240(1A) of the Rules of Procedure and Conduct of Business in Lok Sabha on 08.12.2017 and the same was accepted on 14.12.2017.5. As the seat fell vacant, the petitioner, a public spirited person, approached the High Court of Judicature at Bombay, Nagpur Bench at Nagpur under Article 226 of the Constitution in Public Interest Litigation No. 31 of 2018 contending, inter alia, that if the election commenced in the month of May, 2018, the effective period which the new incumbent would get is only upto March, 2019, that is, less than one year and, therefore, he would not be in a position to function with all vigour and render service to the public and further, there shall be huge expenditure in conducting the election. He had drawn support from Report No. 255 of the Law Commission of India on Electoral Reforms. Reliance was placed on Section 151A of the Act to substantiate the stand that holding of election was not permissible under the said provision.6. The High Court, scrutinizing the language employed in Section 151A, opined that the argument advanced by the petitioner was sans substance and resultantly dismissed the Writ Petition.

Reasoning:
12. At the very outset, we must make a distinction between Sections 147, 149, 150 and 151 on the one hand and Section 151A of the Act on the other. While interpreting these provisions, it has to be kept in mind that though the right to elect a person is fundamental to democracy, yet it is only a statutory right. It is also well settled in law that the legislations governing the said right have to be strictly construed.In the case at hand, no election petition was pending. The elected candidate tendered his resignation on 08.12.2017 and the same was accepted by the Speaker of Lok Sabha on 14.12.2017. The command of Section 151A is to hold the election within a period of six months from the date of occurrence of the vacancy. As the factual scoredepicts, the vacancy occurred when the resignation was accepted by the Speaker of Lok Sabha on 14.12.2017. It is beyond any dispute that the next General Election to Lok Sabha is in June, 2019. Therefore, the remainder of the term is not less than one year. Whether the election is to be held or not would be governed by clause (b) to the proviso to Section 151A and we are not concerned with the same. The ground raised that the code of conduct would come into play before the elections are held in June, 2019 is absolutely sans substance as the Act does not contemplate so. It is the period alone that should be the governing factor subject to the pendency of election petition because that is not controlled by the non obstante clause. Such an interpretation is in accord with the sanctified principle of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives. We may hasten to add that the matter would be different when an election dispute is pending against the candidate that comes within the ambit and sweep of Section 84 or Section 98(c) or Section 101(b) of the Act. That not being the case, the view expressed by the High Court is absolutely impregnable.