The Supreme Court on Wednesday said it will examine the question whether the two vacancies created in Rajya Sabha following election of BJP leaders Amit Shah and Smriti Irani to Lok Sabha were casual or statutory.
A bench of Justices Deepak Gupta and Surya Kant said this while issuing a notice to Election Commission (EC) on a plea by the Congress’s Gujarat unit, seeking simultaneous polls to the two seats.
The court listed the matter for detailed hearing on June 25 and gave the poll panel time until June 24 to file a written response.
The petition by Pareshbhai Dhanani, Leader of Opposition in Gujarat Assembly, has challenged the EC’s classification of the two vacancies as ‘casual’ for conducting separate by-elections. It has emphasised that Section 69(2) of the Representation of the People Act, 1951, read with Sections 67A and 68(4), makes them ‘statutory vacancies’. The bench observed that there were decisions of the apex court and the High Court that need to be looked into.
Appearing for the petitioner, senior advocate Vivek Tankha said these decisions support the Congress’s contention. Justice Gupta replied, “I am not very sure…. It will have to be heard…whether it is a casual vacancy or statutory…. Which way it will go, we don’t know.”
The EC’s counsel contended that a writ petition under Article 32 cannot be filed in the matter. “Which is why we said it will have to be adjudicated,” Justice Surya Kant observed.
The EC, in a notification issued earlier, had stated that by-election to the two seats will be held separately with separate ballot papers, where MLAs will have to vote twice and the candidate with the highest number of votes will win.
This is different from the way the polls were conducted in 2017, which was held by the preference system of voting.
Seeking that the poll panel’s June 15 notification be set aside, Dhanani urged the court to direct the EC to “expeditiously hold simultaneous elections against the vacancies…in accordance with the provisions of the Representation of People’s Act 1951”.