The Supreme Court told Gujarat Congress leader Pareshbhai Dhanani to move the High Court with an election petition instead

The Supreme Court declined on Tuesday to entertain a plea challenging the Election Commission’s decision to hold separate bypolls to two Rajya Sabha seats in Gujarat.

The seats fell vacant on the election of BJP president Amit Shah and Union Minister Smriti Irani to the Lok Sabha.

A Vacation Bench of Justices Sanjiv Khanna and B.R. Gavai asked the petitioner, Gujarat Congress leader Pareshbhai Dhanani, to file an election petition before the Gujarat High Court after the polls. The bench said it would not intervene now as the poll process had already been set in motion.

“This issue raised [in the petition] after the issuance of the Election Commission notification can only be challenged through an election petition. That is the statutory position,” the Bench remarked.

It said contesting election is not a fundamental right. It is merely “a statutory right.”

Counsel appearing for the poll panel had earlier argued that the petition in such issues could not be entertained.

Mr. Dhanani, Opposition leader in the Gujarat Assembly, contended in his plea that the conduct of election for each vacancy separately would only lead to one result — the victory of the party which commanded a simple majority in the State legislature. “This would turn the very objective of proportional representation, i.e. to give each minority group an effective share as per its strength, on its head.”

Of the 183 seats in the Gujarat Assembly, the BJP has 100 and the Congress 71.

The petition, filed through advocate Varun K. Chopra, submitted that though the Congress was in a minority in the Assembly, it had the requisite numbers to proportionately elect members to the Rajya Sabha.

“The BJP which is running the government at the Centre, in order to somehow have its party rule the Rajya Sabha despite not having complete proportion to elect both seats to Council of States, is trying to use the Respondent’s [ECI] office to somehow impede the mandate under the RP [Representation of the People] Act,” the petition stated.