[dropcap]T[/dropcap]HE Supreme Court today issued notice to the Election Commission of India (ECI) on a petition filed by the Congress party’s Paresh Dhanani, the Leader of Opposition in the Gujarat Legislative Assembly, against a decision of the ECI to hold separate bye-polls for two vacant Rajya Sabha seats in Gujarat, consequent to the election of BJP leaders Amit Shah and Smriti Zubin Irani to the 17th Lok Sabha.
Hearing the petition today, a two-judge bench comprising Justices Deepak Gupta and Surya Kant said that the issue raised in the petition required adjudication by the court, and it proceeds to ask the ECI to file its reply by June 24, 2019. The matter is now scheduled to be heard on June 25, 2019.
The ECI, for its part, questioned the maintainability of the petition filed under Article 32 of the Constitution of India.
In his petition, Dhanani had asked for a direction to the ECI to hold simultaneous polls for two vacant seats of the Rajya Sabha in all states, including Gujarat. He had said that separate elections for the two Rajya Sabha seats in Gujarat alone would upset the scheme of proportional representation as mandated under the Representation of People Act.
Dhanai, in his plea, has also sought the quashing of the decision of the ECI on June 15, 2019, pertaining to the Rajya Saha elections from Bihar, Odisha and Gujarat in which the commission termed the vacancies as “casual”.
Calling those vacancies as “casual vacancies” was a complete and direct violation of the provisions of Representation of People Act. Such vacancies came under the category of statutory vacancies under Section 69 of the Representation of People Act, the petitioner had told the Supreme Court.
Dhanai also submitted that if there were regular vacancies at the time the elections were held, they should all have been held together so that the system of proportional representation by means of a single transferable vote could be applied to those elections.
The June 15 press note released by ECI had said “It is further clarified that the vacancies for bye-elections 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 bye-elections may be common. This is in conformity with the provisions of Section 147 to 151 of the Representation of the People Act, 1951, and has been the consistent practice of the Commission in such cases. Holding of separate elections has been upheld by the Hon’ble Delhi High Court in Civil W.P. No. 132 of 1994 (A.K. Walia Vs Union of India & Others) and W.P. No. 9357 of 2006 (Satya Pal Malik Vs Election Commission of India)by its decision dated 14.01.1994 & 20.01.2009 respectively”
If the ECI is given a free hand to issue one or more notification with respect to vacancies in Rajya Sabha and if separate elections are held for the same purpose, it may result in the abuse of power in as much as the majority party will always be able to arrange the matters in such a way that it gets maximum seats, the petitioner had alleged.
The bye-elections to the Rajya Sabha from Bihar, Odisha and Gujarat are scheduled to take place on July 5, 2019.
