The Election Commission (EC) on Monday reiterated that the two Rajya Sabha seats which fell vacant in Gujarat following the election of BJP leaders Amit Shah and Smriti Irani to the Lok Sabha were casual vacancies, and there was nothing in the law which said separate elections should not be held for them.
In its affidavit in reply to a petition filed by the Gujarat Congress seeking simultaneous elections to the two seats, the EC told the Supreme Court that “the (Representation of the People) Act clearly includes every vacancy arising prior to the expiration of the term of a member of the Council of States within the ambit of casual vacancy… There is no provision in law that requires that if there are multiple casual vacancies, they must be filled up by a single bye-election”.
The affidavit, filed by EC counsel Amit Sharma, said it “has consistently considered every vacancy arising prior to the expiration of a member’s term as a casual vacancy” and “has therefore consistently held separate elections for each vacancy… arising prior to the expiration of a member’s term”. The poll panel submitted “that a plain reading of Section 69(2), Section 147(1) and Section 154(3) leads to the unmistakable conclusion that every vacancy arising prior to the expiration of a member’s term is included within the scope of casual vacancy under the Act.”
“It is submitted that any vacancy arising prior to the end of the term of a member is a casual vacancy governed by Section 147 (1) of the Act which requires separate elections for each seat falling vacant. It is submitted that the words ‘become vacant’ and ‘becomes vacant’ used in Section 69(2) and Section 147(1) respectively are identical. This clearly denotes Parliament’s intent to include a vacancy arising due to the operation of Section 69(2) within the ambit of casual vacancy under Section 147(1) of the Act,” it said.
The EC said “it is common ground that a person having been elected at a bye-election shall serve only the remainder of the term of his predecessor’s term of office, irrespective of the reason for which the vacancy has arisen. It is noteworthy that while providing for the aforesaid rule, the phraseology used in Section 154(3) is also ‘casual vacancy’.”
The petition filed by Paresh Dhanani, Congress Legislature Party leader in the Gujarat Assembly, challenged the EC’s classification of the two vacancies as “casual” for conducting separate bypolls, and emphasised that Section 69 (2) of the Act, read with Section 67A and Section 68(4), makes them “statutory vacancies”.
Rejecting this, the EC, in its affidavit, said: “It is therefore clear that there are only two categories of vacancies within the scope of the Act i.e. (a) regular vacancies arising due to the expiration of a member’s term that is filled by the biennial election to the Council of States, and (b) casual vacancies arising prior to the expiration of a member’s term which are filled by a separate election for each seat falling vacant”.
It said “the contention of the petitioner that there exists another classification of vacancies, i.e. ‘statutory vacancies’, is unknown to the applicable constitutional and statutory scheme”. The poll panel also questioned the maintainability of the petition, saying that Article 329(b) bars courts from interfering with the election process once it has been set in motion.
“It is submitted that the notifications for the bye-elections for the casual vacancies arising in the Council of States from various states, including from the State of Gujarat, have been already been issued on 18.06.2019. It is submitted that with the issuance of the said notifications, the election process has commenced, during which the bar on the jurisdiction of this Hon’ble Court operates as per Article 329(b)…”, it said.
The only option under the law was to file an election petition, it said, adding that this had been recognised by the court in an earlier decision. A vacation bench of the Supreme Court, while issuing notice to the EC on June 19, had said it would examine the question of whether these were casual or statutory vacancies. The court will take up the petition for hearing on Tuesday.