The Supreme Court on 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 that have fallen vacant because of Amit Shah and Smriti Irani's election to the Lok Sabha.
A vacation bench of Justices Sanjiv Khanna and B.R. Gavai allowed the Gujarat Congress to file election petition after conclusion of polls to the two Rajya Sabha seats. An election petition is a procedure to call into question the election results of parliamentary, Assembly or local elections.
Shah has been elected from Gandhinagar in Gujarat and Irani is the Lok Sabha MP from Amethi, Uttar Pradesh.
The plea was filed by Congress MLA and Leader of Opposition in the 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 "unconstitutional, arbitrary, illegal, void ab initio" and said that it violated Article 14 of the Constitution.
He had submitted that the poll panel be directed to hold simultaneous by-elections and polling for all vacancies in all states, including Gujarat.
The MLA, through his lawyer, had submitted that separate elections to the two Rajya Sabha seats in Gujarat would upset the scheme of proportional representation as mandated under the Representation of the People Act.
In the petition, it was stated that the basic principle, both under the Constitution and the Representation of the People Act, 1951, is that if regular vacancies are existing at the time an 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 Gujarat Assembly, the BJP has 100 members and the Opposition-led by Congress 75 members. Seven seats are vacant.
The Congress had alleged that the action of the Election Commission was arbitrary, malafide, partisan and was taken in a hasty manner to pre-empt and impede the minority party in the 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 poll panel 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 because if separate elections are held, the BJP would have an advantage and win both the seats.