SC refuses to entertain Cong's plea against separate bypolls for 2 Gujarat RS seats

New Delhi: The Supreme Court Tuesday refused to entertain a plea by the Gujarat Congress challenging the Election Commission's decision to hold separate bypolls to two Rajya Sabha seats in the state.

A vacation bench comprising Justice Sanjiv Khanna and Justice B R Gavai, however, granted liberty to the Gujarat Congress to file 'election petition' after the conclusion of polls to the two Rajya Sabha seats vacated by Union Ministers Amit Shah and Smriti Irani.

An election petition is a procedure to call into question the election results of parliamentary, Assembly or local elections.

The two Rajya Sabha seats fell vacant after Shah and Irani got elected the Lok Sabha from Gujarat's Gandhinagar and Uttar Pradesh's Amethi, respectively.

The plea was filed by Congress MLA and Leader of Opposition in Gujarat Assembly Pareshbhai Dhanani.

The Election Commission had clarified that the vacancies for bypolls to all Houses, including the Rajya Sabha, are considered "separate vacancies" and separate notifications are issued and separate polls are held, though the schedule can be the same.

In his plea, Dhanani had sought a direction to quash and declare the poll panel's order as "unconstitutional, arbitrary, illegal, void ab initio" and said it violated Article 14 of the Constitution.

He had submitted that the poll panel be directed to hold simultaneous by-elections and polling for filling of all vacancies in all states, including Gujarat.

The MLA, through his lawyer,



had submitted that separate elections for the two Rajya Sabha seats in Gujarat would upset the scheme of proportional representation as mandated under the Representation of People Act.

In the petition, it is stated that the basic principle, both under the Constitution and Representation of People Act 1951, is that if regular vacancies are existing at the time when the election is held, it should be held together so that the system of proportional representation by means of single transferable vote can be applied to those elections.

In the 182-member House in Gujarat Assembly, the BJP has 100 members and the Opposition-led by Congress 75 members, while seven seats are vacant.

The Congress had alleged that the action of the Election Commission was completely tainted with arbitrariness, malafide, partisanship and has been taken in an extremely hasty manner to pre-empt and impede the minority party in the state Assembly to elect a member for the Council of States.

It had also alleged that the BJP, running the government at the Centre, has used the Election Commission's Office for its political propaganda.

The EC had on June 15 cited two Delhi High Court rulings of 1994 and 2009 which had supported the system of holding separate bypolls in the same state under provisions of the Representation of the People Act.

The Congress had demanded that the bypolls to the two vacant seats in Gujarat be held together as in case of separate elections, the BJP being the ruling party would have an advantage and win both the seats.