THE SUPREME Court on Tuesday rejected a plea filed by the Gujarat Congress challenging the Election Commission’s decision to hold separate bypolls for the two Rajya Sabha seats which fell vacant in the state following the election of BJP leaders Amit Shah and Smriti Irani to the Lok Sabha.
A bench of Justices Sanjiv Khanna and B R Gavai told the petitioner, Paresh Dhanani, Congress Legislature Party leader in the Gujarat Assembly, that he could challenge the election process by filing an election petition. “The Constitution says file an election petition,” Justice Khanna told Senior Advocate Vivek Tankha, counsel for the petitioner, who argued that political parties may have their own opinions and the question was what the Constitution had to say.
Justice Gavai too questioned the filing of the petition under Article 32 and asked what fundamental right had been violated to warrant such a petition. “How is it maintainable under Article 32? Where is the question of violation of any fundamental right? Contesting elections is purely a statutory right,” he said.
Dhanani had challenged the EC’s classification of the two vacancies as “casual” for conducting separate bypolls, and emphasised that Section 69 (2) of the Representation of the People Act, read with Sections 67A and 68(4), makes them “statutory vacancies”.
Opposing this, the EC, in its affidavit, said these were casual vacancies, and there was nothing in the law which said separate elections should not be held for them.
“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,” it said.
The EC 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”.
Opposing the Congress’s contention that these are statutory vacancies, the poll body said “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”.
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.