Setback For Congress, Top Court Rejects Request On Rajya Sabha Bypolls

The Supreme Court today rejected a petition by the Gujarat Congress challenging the Election Commission's decision to hold separate bypolls to two Rajya Sabha seats that fell vacant after BJP's Amit Shah and Smriti Irani moved to the Lok Sabha. The Congress, which had sought simultaneous elections to the two seats, had accused the election panel of bias, calling its decision "arbitrary and illegal".

The Election Commission has fixed July 5 for the Rajya Sabha by-elections. The petition was filed by the Leader of the Opposition in the Gujarat assembly, Pareshbhai Dhanani.

Refusing to interfere with the Election Commission's order, the top court said that the petitioner could file an "election petition" after conclusion of polls. An election petition is a procedure to call into question the results of parliamentary, assembly or local elections.

"It's better the petitioner go for election petition after the results. Once the notification is issued by the Election Commission, the only remedy is to file an election petition before High Court. Court can't intervene after the Election Commission issues notification for polls," the top court said. "What's the violation of fundamental rights here?" the court asked the petitioner.

"There is no violation of fundamental rights. Also, earlier judgements supported the Election Commission's decision to hold separate polls. Today is the last date for nominations and the EC can go ahead and hold the polls as per schedule," said Rakesh Diwedi, the Election Commission's senior lawyer.

The Congress contends that conducting elections for the two Rajya Sabha seats separately would be against the rules. The BJP has 100 legislators in the Gujarat assembly and the Congress has 71.

Congress's Abhishek Manu Singhvi had said that if the election to each seat is held on different days, the BJP will win both in the "first-past-the-post" system since it has 20 more lawmakers. If the voting is held simultaneously on the same day, the Congress can win one of the seats, he said. But these elections are never clubbed together, the Election Commission has said.

Legislators vote in Rajya Sabha elections in what is called proportional representation with the single transferable vote system. Each lawmaker's vote is counted only once. The lawmakers list their order of preference for each candidate. The candidate that is the first choice for more voters, wins.

Amit Shah's Rajya Sabha seat was declared vacant on May 28 after he won his first Lok Sabha election from Gandhinagar in Gujarat in the national election. Smriti Irani's seat was notified as vacant a day later; she defeated Congress president Rahul Gandhi in his constituency Amethi in Uttar Pradesh.

The notifications were separate because while Amit Shah, the BJP president and Union Home Minister, was declared winner on May 23, the day of the national election results, Smriti Irani's result was announced only the next day.