NEW DELHI: The Supreme Court on Tuesday dismissed a plea by the Gujarat Congress challenging the Election Commission's (EC) decision to conduct separate by-polls for two Rajya Sabha seats which fell vacant after BJP leaders Amit Shah and Smriti Irani were elected to the Lok Sabha.
A vacation bench comprising Justices Sanjiv Khanna and B.R. Gavai observed that after the notice was issued by the poll body, the court cannot intervene, and under such circumstances, the only option available is to move the election petition before the High Court concerned.
The top court said that casual vacancies which arise due to the resignation of the members will be treated separately, and for regular vacancies the polls were to be held simultaneously.
Vivek Tankha, senior advocate, representing petitioner Pareshbhai Dhanani, who is the Leader of Opposition in the Gujarat Assembly, submitted before the court that the matter at hand is a constitutional matter.
Senior advocate Rakesh Dwivedi, representing the poll body, objected to the writ petition.
The court noted that contesting an election is a statutory right and not a fundamental right.
In his plea, Dhanani opposed the EC decision to conduct separate by-polls for the two Rajya Sabha seats. Filed through advocate Varun K. Chopra, the petition sought an early hearing on the matter as the elections for the two seats were scheduled for July 5.
In the 182-member Gujarat Assembly, the BJP has 100 MLAs, Congress 71 while seven seats are vacant.
"Separate elections for the two Rajya Sabha seats in Gujarat would upset the scheme of proportional representation as mandated under the Representation of People's Act (RPA), 1951," said the petition.
It also contended that the representatives of each state in the Council of States (Rajya Sabha) shall be picked by the elected members from the Legislative Assembly of the state "in accordance with the system of proportional representation by means of single transferable vote".
The petition said the basic principle, both under the Constitution and the RPA, was that the elections be held together so that the system of proportional representation by means of a single transferable vote can be applied.
Dhanani urged the apex court to quash the poll panel order and declare it "unconstitutional, arbitrary and illegal".
The poll panel shall not exercise a free hand on the issue, specifically with respect to vacancies in the Rajya Sabha, urged the petition, claiming that if separate elections were held it would result in actual abuse of power as the party in a majority would make arrangements to get the maximum seats.