The two seats fell vacant after BJP president Amit Shah and party leader Smriti Irani were elected as Lok Sabha members on May 23.
Much to the dismay of the Congress, the elections to fill up two vacant Rajya Sabha slots from Gujarat will be separately held on the scheduled date of July 5, with the Supreme Court refusing to be drawn into a debate on the classification of a vacancy arising due to a member of the Upper House joining the Lok Sabha.
Coining a new term 'statutory vacancy', a petition filed by Gujarat Congress leader Paresh Dhanani objected to two specific notifications issued by EC on June 18 announcing elections to two casual vacancies in the Council of States (Rajya Sabha) on July 5.
The two seats fell vacant after BJP president Amit Shah and party leader Smriti Irani were elected as Lok Sabha members on May 23.
Dhanani's lawyer and senior advocate Vivek Tankha submitted that when a member of RS goes to LS, all such vacancies must be treated under one category and simultaneous polls should be declared.
A vacation bench of Justices Sanjiv Khanna and BR Gavai told the petitioners that the Representation of Peoples Act contemplates only two kinds of vacancies – regular (arising on expiry of a member's team) and casual (due to a member's death, resignation or election to Lok Sabha).
The Congress had demanded that the polls to the two vacant seats in Gujarat be held together.
In the case of separate elections, the BJP being the ruling party would have an advantage and win both the seats.
The court said it won't interfere in the matter as the poll process has already been set in motion. It, however, allowed the petitioners to file an 'election petition' after the July 5 elections.
What gave the foundation for the bench to state so was a deftly drafted response filed by Election Commission which highlighted each casual vacancy arising in Rajya Sabha over the decades being treated as a separate vacancy.
The EC informed the SC through its affidavit that if the petitioner has a grievance that any Constitutional provision has been violated, the notification can be questioned through an election petition under the Representation of Peoples Act. But once the notification for election is issued, Article 329(b) of the Constitution bars any judicial interference with the election process.
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