The Supreme Court on Tuesday refused to entertain a plea by the Gujarat Congress challenging the Election Commission's decision to hold separate bypolls to two Rajya Sabha seats in the state, saying the poll process has already been set in motion and the court will not interfere.
The apex court, however, granted liberty to the Gujarat Congress to file an 'election petition' after conclusion of polls to the two Upper House seats vacated by Union ministers Amit Shah and Smriti Irani.
An election petition is a procedure to call into question the poll results of parliamentary, assembly or local elections and is filed in the high court concerned.
A vacation bench comprising Justices Sanjiv Khanna and B R Gavai observed that after the election notification is issued, the court does not intervene in the poll process.
"What is the violation of fundamental right here? Contesting an election is merely a statutory right. You will have to go in election petition," the bench told senior advocate Vivek Tankha, who was appearing for petitioner Pareshbhai Dhanani.
Dhanani is a Congress MLA and the leader of opposition in the Gujarat Assembly.
The two Rajya Sabha seats fell vacant after Shah and Irani got elected to the Lok Sabha from Gujarat's Gandhinagar and Uttar Pradesh's Amethi, respectively.
Senior advocate Rakesh Dwivedi, appearing for the Election Commission, raised preliminary objections on the petition filed by Dhanani and said the poll body is empowered under the law to notify bypolls for Rajya Sabha seats separately and moreover, election process cannot be interfered with once the notification is issued.
Tankha told the bench that the issue raised by them in the petition was of seminal importance.
"You file an election petition," the bench told Tankha.
The bench, while referring to some previous judgements delivered by the top court on pleas pertaining to Rajya Sabha polls, said that these verdicts were "very clear".
When Tankha said that some of the earlier verdicts were in favour of the petitioner, the bench observed, "We will deal with the preliminary objection (of EC) that this issue cannot be raised after issuance of notification".
The bench said that it would not interfere in or delay the poll process and the petitioner can approach the high court by way of an election petition after conclusion of the election.
Dwivedi told the court that there was no violation of fundamental rights in the matter and the previous judgements delivered by the apex court as well as high courts of Delhi and Bombay support the poll panel's decision to hold separate polls for Rajya Sabha seats.
The Election Commission had earlier clarified that vacancies for bypolls to all Houses, including the Rajya Sabha, are considered "separate vacancies" and separate notifications are issued and separate polls are held, though the schedule can be the same.
In his plea, Dhanani had sought a direction to quash and declare the poll panel's order as "unconstitutional, arbitrary, illegal, void ab initio" and said it violated Article 14 of the Constitution.
He had submitted that the poll panel be directed to hold simultaneous by-elections and polling for filling of all vacancies in all states, including Gujarat.
The MLA, through his lawyer, had submitted that separate elections for the two Rajya Sabha seats in Gujarat would upset the scheme of proportional representation as mandated under the Representation of People Act.
In the petition, it is stated that the basic principle, both under the Constitution and Representation of People Act 1951, is that if regular vacancies are existing at the time when the election is held, it should be held together so that the system of proportional representation by means of single transferable vote can be applied to those elections.
In the 182-member House in Gujarat Assembly, the BJP has 100 members and the opposition-led by Congress 75 members, while seven seats are vacant.
The Congress had alleged that the action of the Election Commission was completely tainted with arbitrariness, malafide, partisanship and had been taken in an extremely hasty manner to pre-empt and impede the minority party in the state assembly to elect a member for the Council of States.
It had also alleged that the BJP, running the government at the Centre, has used the Election Commission's Office for its political propaganda.
The EC had on June 15 cited two Delhi high court rulings of 1994 and 2009 which had supported the system of holding separate bypolls in the same state under provisions of the Representation of the People Act.
The Congress had demanded that the bypolls to the two vacant seats in Gujarat be held together as in case of separate elections, the BJP being the ruling party would have an advantage and win both the seats.
