The statutory requirement is enshrined in Section 151-A. But since the constitutional mandate as per Article 164 (4) of the Constitution is that one cannot remain a minister for more than six months without being a member of the House. So the constitutional mandate will prevail – Vikram Chaudhri, senior HC advocate

The Election Commission (EC) on Saturday announced that by-election to fill the Karnal assembly constituency in Haryana will be held on May 25. The Karnal assembly constituency seat was declared vacant after former chief minister Manohar Lal Khattar resigned from the seat earlier this week after quitting as CM on March 12. The development, however, has prompted a debate with regard to the legal provisions for the by-elections.

Khattar’s move to resign from the Karnal assembly seat was primarily aimed at accommodating the newly sworn chief minister and Kurukshetra MP Nayab Singh Saini by getting him elected as a member of the state assembly.

What the election law mandates?

However, the Representation of People Act,1951, the law enacted by the Parliament for the conduct of elections to the two houses of Parliament and state legislatures, bar a by-election to be held if the remaining term of the member is less than one year.

Section 151-A of the Representation of People Act say that the EC can fill a casual vacancy of the state assembly through a by-election within six months from the date of its occurrence provided that the remainder of the term of a member in relation to that vacancy is one year or more.

Khattar resigned on March 13, a day after quitting as chief minister along with his council of ministers. The five-year term of the Haryana assembly ends November 3, 2024, less than a year from the date of vacancy.

Constitution will prevail over the statute

Senior Punjab and Haryana high court advocate Vikram Chaudhri says that statutory requirement relating to election law have to be strictly adhered to since it is a statutory proceeding unknown to common law and the doctrine of equity does not apply.

“All technicalities and procedural requirements must be followed. Every question in relation to the process of elections must be answered within the four corners of the statute. The statutory requirement is enshrined in Section 151-A. But since the constitutional mandate as per Article 164 (4) of the Constitution is that one cannot remain a minister for more than six months without being the member of the House, so the constitutional mandate will prevail,’’ Chaudhri said.

He further said that reconciling the two provisions one can easily say that there is no conflict. The Constitution has to prevail and all action have to be done within four corners of the statute read with the constitutional provisions.

Article 164 (4) of the Constitution says that a minister who for any period of six consecutive months is not a member of the legislature of the state shall at the expiration of that period cease to be a minister.

Former additional secretary, Haryana Vidhan Sabha Ram Narain Yadav said that Article 164 (4) will prevail over the statute – the Representation of People Act. Yadav said that there have been precedents when the EC held by-polls for seats where remainder of the term of the vacancy so filled was for less than a year. Yadav cited the instance of Tosham assembly by-election held in 1987 to elect the then chief minister Bansi Lal.