The question whether vacancy is ‘casual’ or statutory needs to be decided, says Bench

The Supreme Court on Wednesday sought the stand of the Election Commission of India (ECI) on a petition challenging its decision to hold two separate Rajya Sabha bypolls in Gujarat.

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

A Bench of Justices Deepak Gupta and Surya Kant told the poll panel to respond by Monday on the petition filed by Gujarat Congress leader Pareshbhai Dhanani.

The question whether such vacancy was ‘casual’ or statutory needed to be decided, the Bench said, as it posted the case for further hearing on June 25.

Counsel for the poll panel argued that a petition in such issues cannot be entertained.

Mr. Dhanani, the Opposition leader in the Assembly, in his plea contended that the conduct of elections for each vacancy separately would only lead to one result — the victory of the party that commanded a simple majority in the legislature.

“This would turn the very objective of proportional representation, that is, to give each minority group an effective share as per its strength, on its head,” the plea said.

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

The petition filed through advocate Varun K. Chopra submitted that though the Congress was a minority in the Assembly, they 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 the Council of States, is trying to use the respondent [ECI]’s office to somehow impede the mandate under the RP [Representation of People] Act,” the petition stated.

Mr. Dhanani’s petition sought a direction to the poll panel to hold simultaneous by-elections and polling for filling all vacancies in all States, including Gujarat, for the Rajya Sabha.