Telangana High Court Upholds Election Commission Of India's Press Note To Fill Up Casual Vacancy To Posts In State Legislative Council

The Telangana High Court has upheld a press note issued by the Election Commission of India, notifying the conduct of bye-elections to the vacant seats in the Telangana State Legislative Council.

This was challenged by the National Spokesperson of the Bharat Rashtra Samithi (BRS). The main contention of the petitioner was that the press note was not passed in consonance with Article 171 (4).

A Division Bench of Chief Justice Alok Aradhe and Justice Anil Kumar Jukanti noted that the procedure as stipulated under Article 171 is for vacancies that arise at the end of the term and not casual vacancies which are guided by the provisions of Section 151 of the Representation of People Act, 1950. It said:

“Section 151 of the RP Act, inter alia, provides that when before the expiration of the term of office of a member elected to the Legislative Council of a State becomes vacant or is declared vacant or his election to Legislative Council has been declared void, the Election commission shalt by notification in the official gazette elect a person for the purpose of filling the vacancy so caused. Section 151 of the Rp Act envisages issuance of a separate notification for filling up the vacancies. The press note dated O4.OI.2O24 is in consonance with Section 151 of the Rp Act. Therefore, the contention that the press note is in violation of Article I7l(4) of the Constitution of India does not deserve acceptance.”

On 9th December two members of the Telangana Legislative Council resigned from their posts, creating two casual vacancies in the Council. On 4^th January, Election Commission of India notified that separate bye-elections would be held to fill up the vacancies in the Legislative Council by the members of the Legislative Assembly. The notification also mentioned that separate nomination papers and separate coloured ballot papers will be used.

Petitioner, approached the High Court, challenging the note, on the grounds, that the Press notice was violative of protocols and provisions mandated under Article 171 of the Constitution to compose the Legislative Council.

The petitioner contended that the vacancies in the Council as per Article 171 (4) need to be filled by one single transferable vote. It was also brought to the notice of the Court that, as per Article 329 (b) of the Constitution, election in either the houses of the parliament or Legislature could be called only by way of an election petition presented to the competent authority, in a manner acceptable by the Legislature and since the notification for bye-election was not issued by the Election Commission of India, the bar stipulated under Article 329(b) does not apply.

Reliance was placed on the Election Commission of India vs. Ashok Kumar (2000) to plead that the Court has the power to interfere and review the process of election to smoothen or correct the proceedings.

The senior counsel appearing on behalf of the Election Commission, on the other hand, contended that the process established under Article 171 is to be followed to fill up vacancies that arise at the end of the term. Further, it was argued that when a casual vacancy comes up, the procedure was established under section 151 of the Representation of People Act, 1950. 

The Bench also appreciated a similar press note issued by the State of Bihar which was challenged before the Supreme Court and subsequently upheld and noted:

“In the instant case also the notification has already been issued by which the bye-elections have been notified which are scheduled to be held on 29.01.2024. Therefore, in the fact situation of the case, the bar under Article 329(b) of the constitution of India applies. For this reason also no interference is called for.”

As a result, the petition was dismissed.

W.P. 865 of 2023

Counsel for petitioner: Senior Counsel Mukul Rohatgi, Malak Bhatt, Ananya Kanoria, Neeha Nagpal for Bhakti B. Turakhia

Counsel for respondent: Senior Counsel Avinash Desai, Mohammed Omer Farooq for ECI and P. Sudheer Rao SC for TSEC.

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