Introduction:
In Kailashbhai Gobarbhai Savaliya v. Election Commission of India & Ors., a public interest litigation (PIL) was filed in the Gujarat High Court seeking a direction for the Election Commission of India (ECI) to hold a bye-election for the Visavadar Legislative Assembly Constituency. The plea, filed by AAP leader Kailashbhai Savaliya, followed the resignation of Bhupendrabhai Bhayani, the elected representative of the constituency, in December 2023. Savaliya argued that the statutory mandate under Section 151A of the Representation of People Act (RPA) requires the ECI to notify and conduct a bye-election if more than one year remains of the elected member’s term. The petitioner claimed that since the remainder of Bhayani’s term exceeded one year, a bye-election was necessary. However, the Gujarat High Court dismissed the petition, stating that the pendency of an election petition filed by a losing candidate precluded the holding of a bye-election. The court upheld the ECI’s decision, referencing relevant constitutional provisions and previous Supreme Court rulings.
Arguments of the Petitioner:
The petitioner, represented by Senior Advocate Percy Kavina, argued that the ECI was legally bound to conduct a bye-election for the Visavadar constituency, as more than one year remained in the term of the elected candidate, Bhupendrabhai Bhayani, following his resignation. Citing Section 151A of the RPA, the petitioner emphasized that the law mandates that a bye-election for filling any vacancy must be held within six months of the vacancy’s occurrence.
The petitioner further submitted that the resignation of Bhayani triggered a vacancy that required immediate attention from the ECI. He argued that the constitutional requirement under Article 190(3)(b) — which provides that a seat becomes vacant once a resignation is accepted by the Speaker — did not leave room for the ECI to delay the bye-election process. The petitioner contended that the failure to announce a bye-election was a violation of the people’s right to be represented and would leave the constituency without representation for an unjustifiable length of time.
Regarding the pending election petition filed by a losing candidate against Bhayani’s election, the petitioner argued that such a petition should not be used as a pretext for delaying the bye-election. He pointed out that under Section 86 of the RPA, election petitions are supposed to be adjudicated within six months. The petitioner contended that the mere pendency of an election petition beyond this statutory period should not allow the ECI to avoid conducting a bye-election. He also raised concerns that the prolonged pendency of the election petition might be a deliberate strategy by the “concerned party” to avoid holding the bye-election.
In support of his case, the petitioner referred to the statutory mandate under the RPA and urged the court to issue a mandamus directing the ECI to notify and conduct the bye-election without further delay.
Arguments of the Respondents (Election Commission of India and Others):
The respondents, represented by Advocate Sahil M. Shah, countered the petitioner’s claims by arguing that the ECI was under no legal obligation to conduct a bye-election in the current circumstances. The respondents referred to the Supreme Court’s ruling in Election Commission of India vs. Telangana Rashtra Samithi (2011), where it was held that Article 190(3)(b) of the Constitution merely indicates that a seat becomes vacant upon the resignation of a member of a legislative assembly. However, the ECI is not compelled to hold a bye-election in every such case, particularly when other legal considerations are at play.
The respondents further pointed to Section 84 of the RPA, which allows a candidate who files an election petition to seek not only the invalidation of the winning candidate’s election but also a declaration that they themselves or another candidate was duly elected. In light of the election petition filed by a losing candidate against Bhayani, the ECI argued that it would be inappropriate to hold a bye-election while the petition was pending. The respondents reasoned that the pending petition contested the validity of Bhayani’s election and sought to have the petitioner declared the rightful winner. Therefore, holding a bye-election could lead to conflicting outcomes if the election petition were decided in favor of the petitioner, potentially rendering the bye-election unnecessary.
The ECI also highlighted the importance of maintaining the integrity of the electoral process and avoiding premature decisions. They argued that the bye-election should not proceed until the election tribunal rendered its judgment in the pending petition, as the outcome of the petition could have a direct impact on the vacancy and the need for a bye-election.
Court’s Judgment:
After hearing the arguments from both sides, the division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi dismissed the petition, upholding the Election Commission’s decision not to conduct a bye-election for the Visavadar constituency. The court agreed with the ECI’s stance that the pending election petition precluded the announcement of a bye-election.
The court began by addressing the petitioner’s reliance on Section 151A of the RPA, which mandates that a bye-election must be held within six months of a vacancy. While acknowledging the statutory mandate, the court emphasized that the pendency of an election petition alters the legal landscape. The court reasoned that the election petition, filed by a losing candidate, challenged the validity of Bhayani’s election and sought a declaration that the petitioner was the rightful winner. In such circumstances, the court held that conducting a bye-election would be premature and could lead to conflicting outcomes if the election petition were decided in favor of the petitioner.
The bench also referred to the Supreme Court’s ruling in Election Commission of India vs. Telangana Rastra Samithi, which clarified that while Article 190(3)(b) provides for the vacancy of a seat upon resignation, it does not impose a mandatory obligation on the ECI to conduct a bye-election in every case. The court noted that Section 84 of the RPA allows for the possibility that an election petition may result in the petitioner being declared the validly elected candidate. Therefore, holding a bye-election while the petition was still pending would be inconsistent with the statutory scheme and could undermine the final outcome of the election petition.
The court also addressed the petitioner’s argument regarding the statutory mandate in Section 86(7) of the RPA, which requires election petitions to be decided within six months. While the court acknowledged the importance of timely adjudication of election petitions, it held that the delay in deciding the petition did not grant the ECI the right to ignore the legal implications of the pending petition. The court observed that neither the ECI nor the state government had control over the proceedings of the election petition and that it was up to the parties involved to ensure that the petition was pursued expeditiously.
In dismissing the petition, the court concluded that no mandamus could be issued in the circumstances of the case. The court held that the ECI’s decision to withhold the bye-election was consistent with the legal framework governing elections and that the petitioner’s plea was based on a misconceived interpretation of the law.