Supreme Court Rejects Congress’ Plea Against Gujarat Rajya Sabha Bypolls

The Supreme Court on Tuesday refused to entertain the Congress’ plea challenging the Election Commission's decision to hold separate bypolls for two Rajya Sabha seats in Gujarat.

However, a vacation bench of the Supreme Court—comprising Justice Sanjiv Khanna and Justice BR Gavai—allowed the Congress to file an 'election petition' after conclusion of the Gujarat Rajya Sabha bypolls. An election petition is a procedure to call into question the election results of parliamentary, assembly or local elections.

Bharatiya Janata Party leaders Amit Shah and Smriti Irani vacated their Gujarat Rajya Sabha seats after they won the 2019 Lok Sabha elections from Gandhinagar and Amethi, respectively.

Earlier, 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.

The plea, filed by Gujarat Congress president Paresh 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 Bharatiya Janata Party 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 EC was completely tainted with arbitrariness, mala fide, 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.