S. 38(2) RP Act | Telangana HC Upholds Validity Of Provision Listing Nominated Candidates From Recognised Political Parties Above Other Candidates

The Telangana High Court has upheld the constitutional validity of Section 38(2) of the Representation of the People Act, 1951 (the Act) and Rule 5.7.1 of the Election Commission of India's Handbook for Candidates (the Handbook).

The provisions and the rule which is analogous to it, state that a list of validly nominated candidates is to be prepared giving priority in the order of arrangement to the candidates from recognised parties following candidates from registered parties, and others.

The petitioner, an advocate who contested the State Legislative Assembly elections contended that this provision was discriminatory and violative of Article 14 as it gave priority to candidates from a 'recognized political party' and rule 5.7.1 of the Handbook, mirroring the Act, is consequently also arbitrary and unconstitutional.

The petitioner brought to the notice of the Court that he had previously sought to invalidate the same provisions in a dismissed public interest litigation. The present writ reasserts the challenge, now made by the petitioner as an affected individual.

Court's Reasoning

The matter was placed before the Division Bench of Chief Justice Alok Aradhe and Justice Anil Kumar Jukanti, which rejected the contentions raised by the petitioner.

It held that Article 14 is violated only when equals are treated unequally or unequals are treated equally. Further holding that Section 38(2) by classifying candidates as those from recognized parties, registered parties, and independents, treats different categories differently for the specific purpose of publishing the list of contesting candidates.

Court held that this would be a reasonable classification.

“Section 38(2) of the Act, for the limited purpose of publication of a list of contesting candidates, does not treat the equals as unequals, as the candidates belonging to recognized political parties, registered political parties and independent political parties stand on a different footing,” it said.

Relying upon Rama Kant Pandey v. Union of India (1993), the bench reiterated that the right to contest elections is neither a fundamental right nor a civil right.

Accordingly, the court upheld the validity of Section 38(2) and its corresponding Handbook rule, and dismissed the plea.

WP 4998 of 2024

Counsel for petitioner: P.Pareekshith Reddy

Counsel for respondent: Gadi Praveen Kumar, Deputy Solicitor General, Senior Counsel Avinash Desai appear on behalf of Mohammed Omer Farooq

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