NEW DELHI: The Supreme Court on Wednesday issued notice to the Election Commission on a petition filed by Congress challenging its decision to hold separate bypolls to two Rajya Sabha seats in Gujarat.

A bench of Justices Deepak Gupta and Suya Kant asked the Commission to file response on why simultaneous polls for the two Rajya Sabha seats could not be conducted as pleaded by the petitioner. The two seats fell vacant after the election of BJP chief Amit Shah and Smriti Irani as Lok Sabha members.

The petition, filed by leader of opposition in Gujarat assembly Pareshbai Dhanani, sought quashing of the EC's June 15 notification treating the two seats as stray vacancies to warrant separate elections. He said holding of separate elections for the two seats would deny Congress one of the seats which it is entitled to as per its strength in the assembly and as per the law mandating proportional representation with single transferable vote for Rajya Sabha.

Senior advocate Vivek Tankha, appearing for the petitioner, said there is no SC verdict on the issue but the Delhi High Court had passed an order in a similar case. The court, after a brief hearing, said the issue had to be examined and adjudicated and posted it for June 25. The court said it has to be decided whether the two vacancies in Rajya Sabha are casual or statutory.

The Delhi High Court had adjudicated a similar issue in 2009 on holding bypolls for two Rajya Saabha seats from Uttar Pradesh which fell vacant due to disqualification of Jaya Bachchan and resignation of Anil Ambani. The Commission at that time issued separate notification for two seats which was challenged. The HC dismissed the plea saying, "There cannot be any doubt that in so far as the casual vacancy is concerned, holding of joint election is not mandatory even if more than one casual vacancy occurred at the same time."

At present, in the 182-member Gujarat assembly, BJP has 100 MLAs while Congress has 71. If separate polls are held for the two seats, both will be bagged by BJP. The petition filed through advocate Varun K Chopra argued that as per the Representation of the People Act, representatives of each state to Rajya Sabha shall be elected by the members of assembly in accordance with the system of proportional representation by means of single transferable vote.

"The conduct of election for each vacancy separately would only lead to one result, that is, the victory of the party which commands simple majority in the state 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," Dhanani said in his petition.

