SINCE KATARIA's REMAINDER TENURE AS MP WAS LITTLE OVER A YEAR, HENCE AS PER R.P. ACT, 1951 BY-ELECTION IS LEGALLY PERMISSIBLE, SAYS ADVOCATE HEMANT KUMAR

The unfortunate demise of sitting BJP Lok Sabha MP from Ambala (SC-Reserved) Parliamentary Constituency (PC) in Haryana, Ratan Lal Kataria today (May 18, 2023) might result in the conduct of a By-election on this seat in the next few months. If conducted, this would indeed be the first Lok Sabha Bypoll in the State of Haryana during the tenure of the current 17th Lok Sabha. Kataria also remained member of 13th and 16th Lok Sabha from Ambala LS seat and was also member of Haryana Vidhan Sabha once during 1987-91.

Meanwhile, explaining the legal provision for conduct of a By-Election, Hemant Kumar, an Advocate at Punjab & Haryana High Court told that as per Section 149 of Representation of the People(RP) Act, 1951 when the seat of a member elected to the House of the People (Lok Sabha) becomes vacant or is declared vacant or his election is declared void, the Election Commission of India (ECI) has to fill such vacancy.

Sharing an anecdote, Hemant, who is also a resident and registered elector within Ambala City assembly segment under Ambala PC told that in April, 1994 when then sitting MP from Ambala, Ram Prakash died then no By-Poll was conducted on this seat by the ECI although his tenure left as MP was for over two years. However, it is also to be noted that at that time, Sec 151 A was not there in the RP Act, 1951 which was incorporated in the year 1996 only.

As far as time limit for filling up such vacancy, Hemant while quoting Section 151A of RP Act, 1951 asserts that such By-election is to be conducted within a period of six months from the date of occurrence of the vacancy. However, such bypoll is not conducted if the remainder of the term of a member ( who is deceased or unseated etc.) in relation to vacancy is less than one year.

Hemant said that since present 17th Lok Sabha tenure is till 16 June 2024, hence deceased BJP MP Kataria's remainder tenure in current House (as counted from date of this death) would have been about thirteen months which is more than one year. Hence, Bypoll can be conducted by ECI in the next six months in Ambala PC.

However, Hemant also said that Section 151A of RP Act, 1951 also provides that such bypoll is not necessary if the ECI in consultation with the Central Government certifies that it is difficult to hold the by-election within the said period.

Sharing an anecdote, Hemant, who is also a resident and registered elector within Ambala City assembly segment under Ambala PC told that in April, 1994 when then sitting MP from Ambala, Ram Prakash died then no By-Poll was conducted on this seat by the ECI although his tenure left as MP was for over two years. However, it is also to be noted that at that time, Sec 151 A was not there in the RP Act, 1951 which was incorporated in the year 1996 only.

As on date, apart from Ambala PC, one Lok Sabha seat in Maharashtra viz. Pune has been lying vacant since late March this year following BJP's sitting MP from that seat Girish Bapat's death. Apart from that, Wayanad LS seat from Kerala is also vacant from March this year following Rahul Gandhi's disqualification on account of two years imprisonment awarded to him by Surat court in a criminal defamation case . The Gujarat HC is yet to pronounce its verdict over the suspension of conviction of Rahul Gandhi which would however restore his membership from Wayanad seat till final disposal of his Criminal Appeal.

Also earlier this month, Ghazipur Lok Sabha seat in Uttar Pradesh was declared vacant following BSP's sitting MP from that seat Afzal Ansari's conviction in a kidnapping and murder case. Till date, Ansari's conviction has also not been stayed by appellate (high) court.