Terming the Election Commission's decision to hold separate by-polls to two Rajya Sabha seats in Gujarat ‘unconstitutional’, the Gujarat Congress on Sunday, 16 June, accused the incumbent BJP of pressurising the poll body to ensure it winning both the seats.
On Saturday, 15 June, the EC had said that by-polls for six Rajya Sabha seats, including two in Gujarat which were vacated by union ministers Amit Shah and Smriti Irani, after Shah won from Gandhinagar and Irani from Amethi, will be held on 5 July.
External Affairs Minister Subrahmanyam Jaishankar is expected to contest for RS from Gujarat.
The Congress has 71 seats while the BJP has 100. If the by-polls are held in tandem, the Congress can win one seat with 60 votes. However, if the by-polls are held separately, BJP MLAs can vote twice-separately for the two RS seats.
Paresh Dhanani Files Petition, Hearing on 19 June
Congress MLA from Amreli and Leader of Opposition in Gujarat Assembly Pareshbhai Dhanani filed a petition at the Supreme Court on Monday, 17 June. He has sought a direction to the Election Commission for holding the election for the two seats simultaneously.
The petition was filed through advocate Varun K Chopra. Dhanani has sought a direction to quash and declare the poll panel's order as “unconstitutional, arbitrary, illegal, void ab initio” as it violates Article 14 of the Constitution.
He has asked that the poll panel be directed to hold simultaneous by-elections and polling for filling of all vacancies in all states, including Gujarat.
Through his lawyer, the MLA said that separate elections for the two Rajya Sabha seats in Gujarat would upset the scheme of proportional representation mandated under the Representation of People Act.
On Tuesday, 18 June, the SC agreed to hear the Gujrat Congress’ plea challenging the decision of the Election Commission on Wednesday, 19 June. A Vacation Bench with Justice Deepak Gupta and Justice Surya Kant will list the matter on Wednesday after a senior advocate, Vivek Tankha, mentioned it for urgent hearing.
Congress’ Bone of Contention
The petition states that the basic principle, both under the Constitution and Representation of People Act 1951, is that if regular vacancies exist at the time when the election is held, to uphold the system of proportional representation by means of a single transferrable vote, the elections should be held together.
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 an abuse of power as the majority party will be able to arrange matters in a way whereby it gets the maximum seats.
In the 182-member House in Gujarat Assembly, BJP has 100 members while the Opposition-led by Congress has 75. Seven seats are vacant.
The Congress MLA also alleged that the poll panel has “arbitrarily, malafidely, maliciously and under the diktats 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. It stated that the vacancies for by-elections to all Houses, including the Rajya Sabha, are considered separate vacancies for which separate notifications are issued and separate polls are held, although the programme schedule for the by-elections may be common.
EC Clarifies Its Stand
The Congress alleged that the action of the Election Commission was tainted with arbitrariness, partisanship and has 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 also alleged that the BJP, running the government at the Centre, has used the Election Commission's Office for its political propaganda.
However, the EC had clarified on Saturday, that the vacancies for by-polls to all Houses, including the Rajya Sabha, are considered “separate vacancies” for which separate notifications are issued and separate polls are held.
It had said that notifications for the by-polls will be issued on 18 June.
The poll watchdog had 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.
In 1994, a case was filed at the Delhi HC by AK Walia who was a Congress (I) MLA in the Delhi Assembly. He had appealed to the high court as the Rajya Sabha elections for three seats from the Delhi Assembly were being held separately.
In 1994 in the Delhi Assembly, BJP held 49 seats, whereas the Congress only held 14, four seats were held by the Janta Dal and three by independents. With elections for three seats being held separately, Walia through his counsel said that the BJP will have an advantage over other parties.
The counsel for the petitioner argued that there was no occasion for the respondents to hold three separate elections and, as the three seats were available, one election should be held in consonance with Rule 76 of the Conduct of Election Rules 1961.
However, the court ruled against the petitioner, claiming that the three RS seats fell in three different categories which warranted the need for each seat to be separately polled.
Congress & BJP Lock Horns
The opposition party raised questions about the impartiality of the EC before moving to the Supreme Court against it.
“Election to two vacant Rajya Sabha seats in Gujarat should be held together. But in order not to lose any of the two seats, the BJP has pressurised the Election Commission into holding the polls to the two seats separately, which is unconstitutional. The notification is wrong, unconstitutional and raises questions over the impartiality of the Election Commission.”Amit Chavda, Gujarat Congress President
Reacting to Chavda’s accusations, Chief Minister Vijay Rupani said that by-elections to the Rajya Sabha seats are held separately, which had prompted the EC to issue separate notifications for the same. He expressed confidence that both the seats will be won by the BJP.
“The system is such that by-election to Rajya Sabha seats is not held together, but separately. There will be separate notifications for the two seats, and we will certainly win both the seats as we have sufficient number (of votes),”Vijay Rupani, Chief Minister Gujarat
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