THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE VILAS WRIT PETITION No.14443 of 2010
Telangana Rastra Samithi
Union of India, and others
COUNSEL FOR PETITIONER: Sri K.Ramakrishna Reddy,
Senior Counsel appearing for J.Ramchander Rao
COUNSEL FOR RESPONDENT No.1: Sri Ponnam Ashok Goud
COUNSEL FOR RESPONDENT No.2: Sri S.Niranjan Reddy
:ORDER: (Per Hon'ble Sri Justice V.V.S.Rao)
The decision of Election Commission of India (ECI) not to hold bye- elections to 28-Vemulawada and 29-Sircilla Assembly Constituencies in State of Andhra Pradesh is in challenge in this writ petition filed by Telangana Rastra Samithi (TRS). The case involves a constitutional question of significance in the matter of bye-elections to casual vacancies in State Legislative Assembly. Election Commission of India (ECI - second respondent herein) contends that bye- election to a casual vacancy cannot be conducted even if a seat has become vacant under Article
190(3)(b) of the Constitution of India, so declared by Notification by the Speaker of the Assembly under Section 150 of the Representation of the People Act, 1951 (RP Act, for brevity). ECI would sustain such an argument from the pendency of Election Petition under Section 80 read with Sections 100 and 101 of RP Act challenging the election of a Member of House of Legislature, who subsequently submitted his resignation. They rely on D.Sanjeevayya v Election Tribunal, Andhra Pradesh1. TRS would rely on Section 151A of RP Act which was introduced by the Representation of the People (Amendment) Act, 1996 (Central Act No.21 of 1996) which came into force with effect from 01.08.1996 and urge that a casual vacancy shall be filled within 'a period of six months from the date of occurrence of the vacancy'. The entire controversy is in relation to this aspect in this writ petition, which is heard at the stage of admission with the consent of the senior counsel for TRS, standing counsel for ECI and Assistant Solicitor General for Union of India (first respondent herein). The fact of the matter is not in dispute. General elections to Andhra Pradesh State Assembly were held during April/May, 2009 in accordance with Section 15 of RP Act and the provisions in Part V of RP Act. Among others, ten members of TRS, one member from Bharatiya Janata Party (BJP) and one from Telugu Desam Party (TDP) were also elected. The election of the successful candidate in respect of 28-Vemulawada Assembly Constituency was challenged in Election Petition being E.P.No.4 of 2009 before this Court. The election of the candidate in respect of 29-Sircilla Assembly Constituency was also challenged in E.P.No.14 of 2009. The petitioners therein sought the relief to set aside the election of the declared candidate and also the relief of declaration that the election petitioner is elected to the Constituency. These petitions are pending before this Court.
A Joint Action Committee (JAC) was formed with all political parties for the cause of separate Telangana State. JAC decided that all the Members of Legislative Assembly of respective political parties should resign. Twelve (12) members submitted resignations on 14.02.2010 to their Membership in Andhra Pradesh State Legislative Assembly. The Speaker of Assembly ordered Notification of the vacancies. These Notifications were published in Andhra Pradesh Gazette (Part II Extraordinary), dated 14.02.2010. The two Notifications in relation to 28-Vemulawada and 29-Sircilla read as under.
Resignation of Sri Ch.Ramesh, Member elected from
28-Vemulawada Assembly Constituency.
C.No.37/Legn./2010-11/- "Sri Ch.Ramesh, an elected Member of the Andhra Pradesh Legislative Assembly from 28-Vemulawada Assembly Constituency has resigned to his seat in the Andhra Pradesh Legislative Assembly with effect from the 14th February, 2010.
Consequently a vacancy has arisen to
28-Vemulawada Assembly Constituency".
Resignation of Sri K.Taraka Rama Rao, Member elected from 29-Sircilla Assembly Constituency.
C.No.37/Legn./2010-8.- "Sri K.Taraka Rama Rao, an elected Member of the Andhra Pradesh Legislative Assembly from 29-Sircilla Assembly Constituency has resigned to his seat in the Andhra Pradesh Legislative Assembly with effect from the 14th February, 2010.
Consequently a vacancy has arisen to 29-Sircilla Assembly Constituency." ECI issued a Press Note No.ECI/PN/23/2010, dated 21.06.2010, under Section 30 of RP Act notifying their decision to hold bye-elections to fill up ten 'clear vacancies' as per the
programme indicated therein. Bye-elections to
28-Vemulawada and 29-Sircilla Assembly Constituencies have not been notified. The Press Note, to the extent relevant, is extracted below.
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi - 110 001
No.ECI/PN/23/2010 Dated June 21, 2010
Subject: Schedule for bye-elections to fill the casual vacancies in the Legislative Assembly of Andhra Pradesh - regarding.
- - -
There are 12 casual vacancies in the State Legislative Assembly of Andhra Pradesh out of which, in two assembly constituencies viz., 28-Vemulawada and 29- Sircilla, election petitions are pending wherein the petitioners have sought to be declared elected. Therefore, there are only 10 clear vacancies in the State Legislative Assembly of Andhra Pradesh from 1-Sirpur, 2-Chennur (SC), 04- Mancherial, 15-Yellareddy, 17-Nizamabad (Urban), 20-Koratla, 22-Dharmapuri (SC), 31-Huzurbad, 33-Siddipet and 105-Warangal West Assembly Constituencies which need to be filled up.
After taking into consideration various factors, the Commission has decided to hold bye-elections to fill up the said 10 clear vacancies as per programme indicated:-
The senior counsel for TRS and counsel for respondents made their submissions. They also relied on precedents to which a reference would be made at appropriate place. Whether Section 151A read with Sections 84, 98, 101 and 150 of RP Act is not mandatory and only directory? Whether Section 151A must be interpreted as being subject to Article 324 of Constitution? These are the questions which have been debated for and against by the rival counsel. As the controversy is focussed on Section 151A of RP Act, we may extract the same. 151A. Time limit for filling vacancies referred to in Sections 147, 149, 150 and 151:- Notwithstanding anything contained in Section 147, Section 149, Section 150, and Section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy.
Provided that nothing contained in this section shall apply if- (a) the remainder of the term of a member in relation to a vacancy is less than one year; or
(b) The Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.
Sections 147, 148, 149, 150, 151 and 151A of RP Act appear in Part IX, which deals with bye-elections. Part V (consisting eight Chapters) deal with the conduct of general elections. Part III and Part V nowhere prescribe time limit obliging ECI to conduct election within a period of six months after expiry of term of Assembly. Section 15 of RP Act is to the effect that general elections shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution. The proviso thereto prohibits a general election, "at any time earlier than six months prior to the date on which the duration of that Assembly would expire under Article 172(1) of the Constitution or Section 5 of the Government of Union Territories Act, 1963". Thus, in the case of general elections, ECI is prohibited from conducting election at any time earlier than six months prior to expiry of the term of the Assembly. Such prohibition, however, does not apply to a case where the Legislative Assembly is dissolved.
In Gujarat Assembly Matter In Re:2, a Constitution Bench of the Supreme Court considered the Presidential Reference involving interpretation of Articles 174(1) and 324 of the Constitution. Article 174 provided that the House of Legislature of the State shall meet as summoned by the Governor but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. The question was whether Article 174 is subject to the decision of the ECI under Article 324 as to the schedule of elections of the Assembly. Supreme Court answered holding that, "Article 174(1) relates to an existing and functional Legislative Assembly and not to a dissolved Assembly whose life has to come to an end and has ceased to exist and that Article 174(1) neither relates to election nor does it provide any outer limit for holding elections for constituting Legislative Assembly. It was also held that, "under Article 324 it is the duty and responsibility of the Election Commission to hold free and fair elections at the earliest and that no efforts should
be spared by the Election Commission to hold
timely elections", and that ordinarily law and order or public disorder should not be an occasion for postponing election. Therefore, except where the law expressly enables to do so either general elections or bye-elections cannot be postponed.
Reverting to Section 151A of RP Act, it is the only provision in RP Act prescribing time limit for filling casual vacancies referred to in Section 147 (in the Rajya Sabha), Section 149 (in the Lok Sabha), Section 150 (in the State Legislative Assemblies) and Section 151 (in the State Legislative Councils). There is no dispute nor it is denied that a casual vacancy would arise when a seat of a Member becomes vacant as contemplated in Article 190(3)(a) and (b) of Constitution or which is declared vacant under Article 190(4) of Constitution or when a Member's election is declared void by the Court. Section 150 of RP Act is silent as to the effect when seat of elected candidate becoming vacant under Article 190(3)(b) of the Constitution during pendency of election petition. But the silence in this regard in Section 150 does not enable withholding of bye- election on that ground.
Section 151A of RP Act with non obstante clause requires a bye-election to be held within a period of six months from the date of occurrence of the vacancy. Having regard to the word 'or' (which is disjunctive) used in Section 150(1) of RP Act between 'when the seat becomes vacant' and 'is declared vacant', election has to be held within six months from the date of occurrence of the vacancy. The proviso to Section 151A of RP Act contemplates two situations where election need not be held within a period of six months. First, where the remainder of the term of the Member in relation to vacancy is less than one year and secondly, ECI in consultation with the Central Government certifies that it is difficult to hold bye-election within the said period. The second category may take in its fold myriad situations and it is left to the ECI not to hold bye-election after consultation with Central Government. It is not the case before us that the ECI has consulted the Central Government and certified not to hold elections to two Constituencies in question. The legislative choice of relaxing six months rule in only two situations, on a plain reading does not admit any other situation including pendency of
election petition. Even if the elected candidate resigns during pendency of election petition against him, election shall have to be held within a period of six months from the date of occurrence of such casual vacancy. Section 151A of RP Act calls for plain and literal interpretation. When the provision and the language used in the provision is unambiguous, even if it results in hardship or inconvenience, ordinary meaning should be given. In M/s.Hiralal Ratanlal v STO3, Supreme Court held that, "In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear". The Court while applying literal rule of interpretation can neither add nor delete words in the Statute. 'Intention seeking' and a departure from the literal rule of interpretation is permissible when (i) there is ambiguity or contradictions in the Statute; or (ii) the plain and literal meaning is unintelligible; or (iii) it results in some absurdity; or (iv) even if it is intelligible, the plain meaning is totally opposed to the very object of the legislation. We do not find any of these to depart from literal rule of interpretation, which is golden rule of construing statute.
Applying the literal rule of interpretation, we have no manner of doubt that ECI is bound to hold bye-election under Section 151A of RP Act for 28-Vemulawada Assembly
Constituency and 29-Sircilla Assembly Constituency. The pendency of Election Petitions and the uncertain consequences that might follow would not in any manner dilute the effect of Section 151A of RP Act especially when the Speaker of Assembly has already notified the vacancies as contemplated under Article 190(3)(b) of the Constitution read with Section 150 of RP Act. The use of non obstante clause, the restriction of exempted situations
to two as provided under proviso to Section 151A of RP Act would support literal interpretation supra.
The conclusion as above is also supported by the observations of Supreme Court in Consumer Education and Research Society v Union of India4, wherein Parliament (Prevention of Disqualification) Amendment Act, 2006 was challenged. The said Act exempted fifty five offices of profit relating to statutory bodies or non- statutory bodies from disqualification prescribed in Articles 101 to 104 of Constitution (which are in pari materia with Articles 190 to 193 in relation to State Legislatures). The Act was upheld as constitutionally valid. The observations relevant for the purpose of the case on hand are as follows (paras 59 and 61 of SCC)
On the other hand, in case of a person who resigns, the vacancy occurs as per Article 101(3)(b) when the resignation is accepted by the Chairman or the Speaker and in such case, the Constitution does not contemplate any adjudication on the subject of disqualification. Similarly, in the case of a Member being absent without permission for a period of 60 days the vacancy arises when the House declares his seat vacant and there is no provision for adjudication about such disqualification. In the case of a person having a dual membership of Parliament and a State Legislature, on the expiration of 15 days (provided by the Prohibition of Simultaneous Membership Rules, 1950), the person's seat in Parliament becomes vacant without any further adjudication. ... We also find support for this view from a reading of Sections 147, 149 and 151A of the Representation of Peoples Act. Section 147 deals with a casual vacancy in the Council of States and Section 149 deals with casual vacancies in the House of People, on account of the seat of a Member becoming vacant or being declared vacant or his election being declared void. Section 151A provides that when such casual vacancy arises, the Election Commission shall have to fill up the vacancy by holding bye-elections within a period of six months from the date of occurrence of the vacancy.
Sanjeevayya ratio is of no help to ignore the enacted provision nor ECI can call back on exercising power under Article 324 of Constitution. Therefore, pendency of election petition and the uncertainty of consequences there from are neither a reason nor rationale to ignore Section 151A and classify casual vacancies into 'clear vacancies' and 'not clear vacancies'. Article 190(3)(b) of the Constitution does not admit such differentiation. Insofar as bye-elections are concerned, when once a declaration is made under Section 150 of RP Act by the Speaker - a vacancy that arises as contemplated under Constitution and/or the relevant statute; Section 151A comes into play and the bye-elections to the casual vacancies that arises under Sections 147, 149, 150 and 151 shall have to be conducted by ECI within the period mandated by the Parliament. Sanjeevayya was a case where a member's election was impeached before the Election Tribunal. During its pendency, the successful candidate submitted resignation and invoked public law remedy before this Court. He unsuccessfully sought mandamus to ECI to hold election as per Section 150 of RP Act. The pendency of election petition and Sections 86, 98(c) and 150 of RP Act (without any time limit for conduct of bye-election) became all important statutory facts for construction of the provisions. The Supreme Court considered that, "no time limit is fixed in the Section for the Election Commission to call upon Assembly Constituency concerned to elect a person for filling the vacancy", that, Section does not say that "the Election Commission shall hold a bye-election "forthwith" or "immediately"" and that in the facts of that case, Election Commission is not bound under Section 150 of RP Act to hold bye-election forthwith (see paras 5 and 6 of AIR). Needless to mention that the case involved construction of Section 150 in the context of Sections 84 and 98(c) of RP Act at the time when Section 151A was not in RP Act.
There was some debate before us that Act 21 of 1996 which inserted Section 151A not being a piece of legislative invalidation (or validation), Sanjeevayya covers the lis. We are afraid we cannot accept the submission. It is well settled that the construction of provision by the Court before such provision is amended or substituted is an exercise of interpretation of the law as existed and does not and should not be treated as covering the situation after express enactment amending the provisions of Law
so construed earlier. In support of this, we need to refer to relevant observation in Dr Baliram Waman Hiray v Justice B. Lentin5, which reads as under. (para 30)
In Lalji Haridas v State of Maharashtra (AIR 1964 SC 1154), the majority of this Court held that the proceedings before an Income-tax Officer under Section 37(4) of the Indian Income-tax Act, 1922 were judicial proceedings under Section 193 of the Indian Penal Code and such proceedings must be treated as proceedings in any Court for the purposes of Section 195(1)(b) of the Code. It must be remembered that the decision in Lalji Haridas' case was rendered prior to the enactment of Sub-section (3) of Section 195 of the present Code. The Court was therefore concerned with the definition of the term 'Court' under Section 195(2) of the earlier Code which was an inclusive one. There being no express provision akin to Section 40 of the Indian Railways Act, Section 23 of the Workmen's Compensation Act or Section 18 of the Payment of Wages Act, the matter was one of construction. The question therefore whether an Income-tax Officer was a Court for the purposes of Section 195(1)(b) was more a question of interpretation than one of express enactment after the amendment of Section 136 of the Income-tax Act, 1961 by Section 28 of the Finance Act, 1985. The decision of the majority in Lalji Haridas' case, is now more of academic interest. The decision in Balwant Singh v L.C.Bharupal, ITO, (1968) ITR 89 (SC), does not carry the matter any further.
To the same effect are observations in Indira Nehru Gandhi v Raj Narain6 (para 113)
Counsel for the respondent relied on the recent decision of this Court in Kanwar Lal Gupta v Amarnath Chawla7 in support of the proposition that there has been no change in law and if expenses incurred by a political party can be identified with the election of a candidate then that expenditure is to be added to the election expenses of a candidate as being authorised by him. There are no findings by the High Court in the present appeals that any expenses by a political party were authorised by the appellant. There is also no finding in the present appeals that any expenses incurred by a political party can be identified with the election of the appellant. The changes in law affected by the Amendment Acts, 1974 and 1975 totally repel the submissions on behalf of the respondent. Expenses incurred or authorised in connection with the election of a candidate by a political party shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or authorised by the candidate. Further more, the ruling in Kanwal Lal Gupta is no longer good law because of the legislative changes.
Thus, the legislative changes are relevant in considering the binding nature of the precedent of the Court on record. Such a precedent which is always treated as an authority for what it decides may cease to be an authority in view of the subsequent changes made by competent legislature. It is trite that a competent legislature is presumed to be aware of the law that existed prior to enactment of a new law. It is also presumed that the Legislature is also aware of the effect of the new enactment on the rights and liabilities of the targeted group of people before and after the legislative exercise. It is within the constitutional scheme that competent legislature within its sphere legislate and while doing so may even alter or modify the law as interpreted by the Courts, in which event, the decision of a Court may assume academic importance losing the binding nature. Therefore, even if the Statement of Objects and Reasons do not specifically refer to Sanjeevayya, the new legal regime alone must be looked into by the Court (See para 109, PUCL v Union of India8). Sections 84, 98(c) and 101 of the RP Act enable an election petitioner to claim a declaration that election of the returned candidate is void and claim a further declaration that he himself or any other candidate has been duly elected. If a candidate who filed election petition eventually gets such declaration and bye-election is held consequent on the resignation of a Member, it might result in an impossible situation. So contending, the counsel for ECI would urge that Sections 150 and 151 of RP Act should be harmoniously construed. In view of the non obstante clause in Section 151A, the harmonious construction is ruled out. Even otherwise in every case, the grant of additional relief of declaration of the election petition as having been elected is not a rule. In Prakash Khandre v Dr Vijay Kumar Khandre9, a three Judge Bench of Supreme Court considered the effect of Section 101 of RP Act on the relief to be granted to the election petitioner. It was held:
However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected.
We do not have all the facts pleaded in E.P.Nos.4 and 14 of 2009 and therefore, we are not able to definitely hold that such declaration in favour of election petitioners is not possible. We however hasten to add that even if only two candidates contested in the elections in April/May, 2009, for 28-Vemulawada and
29-Sircilla Assembly Constituencies, the same does not effect our conclusions because the Court in its discretion may always deny such relief contemplated under Sections 84, 98(c) and 101 of RP Act.
The submission of ECI that Section 151A of RP Act is not mandatory or that while interpreting Section 151A, the effect of Sections 84, 98 of RP Act and Article 324 of Constitution cannot be ignored is misconceived. The power of the ECI under Article 324 to lord over the conduct of elections is indeed subject to the legislation by the Parliament under Article 327 and also subject to law made by State Legislature under Article 328 read with Entry 72 of List I and Entry 37 of List II of Seventh Schedule to Constitution. In Mohinder Singh Gill v Chief Election Commissioner10, with reference to scope and extent of the plenary power of superintendence vested in the ECI, Constitution Bench concluded that the power of ECI is subject to two limitations, namely, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act inconformity with, not in violation of, such provisions and be amenable to the norms of natural justice. Only in the absence of any law by Parliament or State Legislature, "Article 324 of the Constitution is reservoir of power to act for the avowed purpose of not divorced from, pushing forward a free and fair election with expedition". The same view was reiterated in Gujarat Assembly Matter In Re, when the apex Court observed that, "the general power of superintendence, direction, control and conduct of election although vested in the ECI under Article 324(1), yet it is subject to any law made either by the Parliament or by State Legislature, as the case may be, which is also subject to provisions of the Constitution". Thus the dicta that the Parliament or a State Legislature cannot whittle down the power under Article 324 is altogether different from the proposition that ECI shall abide by the law made by competent legislature. Therefore, when the field is very much covered by the Parliamentary enactment, the ECI cannot fall back on the general reservoir of power. The dispassionate and vehement submission of counsel for EC that the Court ought to interpret Section 151A of RP Act so as not to render Sections 84, 98 and 101 otiose, is unsustainable. It is well settled principle of adjudication that a Court ought to decide the case (in this case election petitions) as per the law as on the existing date of adjudication taking into consideration the post litigation subsequent historical facts. Therefore, even if petitioners in the two election petitions pending before this Court succeed, which itself is uncertain, the Court can always deny the relief, in view of events subsequent to filing of election petitions (See Prakash Khandre).
Expecting possible adverse decision against the elected candidate (who since resigned), ECI cannot ignore the mandate of Section 151A of RP Act. Allowing them to do so would be allowing to violate Article 327 and valid law made by Parliament.
Therefore, we cannot countenance the submission of the counsel, when the law is plain and unambiguous and when Parliament is presumed to be aware of Sanjeevayya ratio. We may remind that every Court is a Court of "Justice according to law" and not above the law. Section 151A of RP Act cannot be ignored either by the ECI or this Court in dealing with the case of this nature. Further
more, we are convinced that the interpretation of Section 151A of RP Act, as we did supra, would subserve the democracy, which itself is a basic feature of the Constitution of India.
In the result, for the above reasons, we allow the writ petition as prayed for directing to hold bye-election for filling the vacancy for 28-Vemulawada Assembly Constituency and
29-Sircilla Assembly Constituency along with bye-elections already notified for other ten Assembly Constituencies. We direct the parties to bear their own costs.
?1 AIR 1967 SC 1211
2 (2002) 8 SCC 237
3 AIR 1973 SC 1034
4 (2009) 9 SCC 648
5 (1988) 4 SCC 419 : AIR 1988 SC 2267
6 1975 (Supp) SCC 1
7 (1975) 3 SCC 646
8 (2003) 4 SCC 399
9 (2002) 5 SCC 56810 (1978) 1 SCC 405 : AIR 1978 SC 851