The Supreme Court has agreed to hear tomorrow a petition filed by a member of Indian National Congress challenging the decision of Election Commission of India to hold two separate bypolls to the Rajya Sabha seats which fell vacant upon the election of BJP President Amit Shah and Smriti Irani to Lok Sabha.

Senior Advocate Vivek Thankha, appearing for the petitioner Pareshbhai Dhanani, Congress MLA from Gujarat, mentioned the matter before the vacation bench of Justices Deepak Gupta and Surya Kant, which agreed to hear it tomorrow.

Dhanani, who also happens to the be leader of opposition in Gujarat assembly, submits in the petition 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. The petition contended that if the Election Commission is given a free hand to issue one or more notification with respect to vacancies in Council of States (Rajya Sabha) and if separate elections are held for the same purpose, it may result in abuse of power in as much as the majority party will always be able to arrange the matters in such a way that it gets maximum seats.

The Congress MLA also alleged that the poll panel has "arbitrarily, malafidely, maliciously and under the dictats of the incumbent government" invoked its residuary powers under Article 324 of the Constitution and arbitrarily issued the June 15 press note declaring separate elections for the Council of States, where it stated that the vacancies for by-elections to all Houses, including the Rajya Sabha, are considered as separate vacancies and separate notifications are issued and separate poll is taken for each of the vacancies although the programme schedule for the by-elections may be common.

While announcing by-polls to six Rajya Sabha seats on July 5, the poll panel had clarified that the vacancies for by-polls to all Houses, including the Upper House, are considered "separate vacancies" and separate notifications are issued and separate polls are held, though the schedule can be the same.

The EC on June 15 also cited two Delhi High Court rulings of 1994 and 2009 which had supported the system of holding separate by-polls in the same state under provisions of the Representation of the People Act.

Click here to download the petition