2019 Gujarat Rajya Sabha polls: SC to decide on Election Commission's power to hold separate elections to fill casual vacancies

The Supreme Court on Friday said it would like to give an authoritative pronouncement on the issue of Election Commission’s power on the issuance of separate notifications for holding by-polls for casual vacancies in Rajya Sabha.

The top court was hearing a batch of petitions including one of Congress leader Gaurav Pandya who has challenged the election of External Affairs Minister S Jaishankar to Rajya Sabha.

A bench of Chief Justice S A Bobde and Justices A S Bopanna and Hrishikesh Roy adjourned the hearing on a batch of pleas related to last year Rajya Sabha by-poll on two seats from Gujarat by four weeks.

“I think there should be one authoritative pronouncement on the issue,” the CJI said adding that there are several questions of law in a batch of petitions related to EC’s power in holding regular and casual elections to fill vacancies in Rajya Sabha.

Senior advocates Harish Salve and Satpal Jain appeared for Jaishankar and the other BJP candidate who had won the election for Rajya Sabha from Gujarat.

Jain said that during the brief hearing, the CJI observed that there is no authoritative judgement of the Supreme Court as to whether the election to more than one vacancy should be held separately or jointly, therefore "we need to give an authoritative decision on this issue".

Jaishankar has already filed caveat through advocate Swarupama Chaturvedi in the top court seeking to be heard before the court decides any plea filed against the Gujarat High Court order of February 4.

The high court had dismissed the plea of Congress leader Gaurav Pandya, who had challenged Jaishankar's election to the Rajya Sabha.

It had also dismissed two other petitions filed by Congress leaders Chandrikaben Chudasama and Pareshkumar Dhanani against the election of BJP candidate Jugalji Thakore.

Chandrikaben Chudasama and Pareshkumar Dhanani have also moved the apex court against High Court order dismissing their election petitions against Thakore.

Both Jaishankar and Thakore were elected to Rajya Sabha on July 5 last year in bypolls held on seats vacated by Union ministers Amit Shah and Smriti Irani.

Jaishankar and Thakore had defeated Congress candidates Pandya and Chudasama respectively in the bypolls.

The Congress leaders had moved the high court, challenging the election on the ground that the Election Commission's notifications, treating the two vacant seats to be of different categories and requiring by-polls to be held separately, were "illegal and in violation of provisions of the Constitution, the Representation of People (RP) Act, 1951 and the Conduct of Election Rules, 1961".

The high court had dismissed the petitions saying the petitioners failed to disclose the cause of action under the provisions of the RP Act relating to the grounds for declaring an election void.

It had also said the petitioners failed to point out any provision of the Constitution or the RP Act requiring the EC to hold a single by-election for filling up all casual vacancies.

"The non-compliance of provisions of the Constitution or provisions of the said (RP) Act constituting the cause of action has to be specifically pleaded, and the interpretation of the petitioner of a particular provision of Constitution or of the Act in a particular manner cannot be termed as the non-compliance of such provision for the purpose of challenging the election," the high court had said.

Jaishankar and Thakore had contended before the high court that the EC broke no rules by holding separate elections for two seats and it has been a consistent practice by the poll panel since 2009 to issue separate notifications for holding by-polls for casual vacancies in the Rajya Sabha.