On Wednesday, the Supreme Court will hear a petition by the Gujarat state Congress challenging the Election Commission decision to conduct separate elections to Rajya Sabha seats in the state. What happens in separate elections, and when are they held?
Which seats, where
On July 5, six Rajya Sabha seats will go to polls in Odisha (3), Gujarat (2) and Bihar (1). Except for one of the three seats in Odisha, the MP from which has resigned, the other five fell vacant on account of the MPs being elected to the Lok Sabha or the Odisha Assembly. The newly elected Lok Sabha MPs vacating their Rajya Sabha seats are Amit Shah and Smriti Irani in Gujarat, Ravi Shankar Prasad in Bihar (all three BJP) and Achyutananda Samanta in Odisha (BJD).
The election format
“It is further clarified that the vacancies for [byelections] to all Houses, including the Rajya Sabha, are considered as separate vacancies and separate notifications are issued and separate poll is taken for each of the vacancies although the programme schedule for the [byelections] may be common,” the EC said in a press note. In effect, every MLA will vote separately for the respective vacancies in Gujarat and Odisha (this question does not arise in Bihar, with just one seat vacant).
How it is different
In Gujarat, for example, separate ballot papers will be used for the seats being vacated by Shah and Irani. In August 2017, when they won these Rajya Sabha seats, it was through a single election to three seats (the third MP elected was Ahmed Patel of Congress). Then, each MLA had a single transferable vote and marked their first- and second-preference candidates. In a single election that combined three contests, each MLA’s vote was transferable from one candidate to another, depending on which preference was being counted. Now, separate ballot papers means there will be only candidate from each party, so there is no marking of preferences.
Why that matters
It means that BJP candidates will win both seats in Gujarat. With 100 out of 175 MLAs at present (full strength is 182), the BJP is way ahead of second-placed Congress at 71. Each of these MLAs will be voting in two different elections.
Had there been one election for both seats, one of these would have seen a contest. Under such a format, a victory would require the votes of 59 MLAs in Gujarat, calculated through a standardised formula. That means that if the BJP used up 59 of its 100 votes for electing one candidate, the remaining 41 votes on their own would not have been enough to elect the second candidate.
Why this format
A single election for a number of seats in a state is held when these MPs have completed their Rajya Sabha terms. When a seat falls vacant in circumstances such as now (casual vacancies), each vacancy is filled by a separate election.
In its press note announcing the separate vacancies, the Election Commission said this is “in conformity with provisions of Sections 147 to 151 of the Representation of the People Act, 1951 and has been consistent practice of the Commission in such cases.” It also referred to two Delhi High Court rulings in favour of separate elections, in 1994 and 2009.
Under Sections 147 to 151 of the RP Act, all “casual vacancies” are filled by separate byelections. “This is not the first time; it has been happening for about the last 40 years. The first time the question arose was in 1984-85, when the Election Commission gave a detailed order saying that byelections have to be held separately. The Delhi High Court upheld it twice,” said S K Mendiratta, former legal adviser to the Election Commission.
What Delhi HC ruled on
The cases cited by the EC were A K Walia vs Union of India & Others, and Satya Pal Malik vs EC. The High Court upheld the EC decision in both. In the former case in 1994, the court dismissed a petition by a Congress MLA from Delhi who had argued that if one election was held for three seats, the possibility could not be ruled out that the result could be different from the outcome from three different elections.
“Vacancies that happen after the term of an MP ends are usually filled together. They are regular vacancies,” Mendiratta said.