Casual vacancies arising prior to the expiration of a member's term in the Rajya Sabha can be filled by separate elections, the Election Commission of India said in response to the petition filed by a Congress MP against the poll panel's decision to hold separate elections to two seats in Rajya Sabha from Gujarat.
The seats fell vacant after BJP leaders Amit Shah and Smriti Irani won from Gandhinagar and Amethi Lok Sabha constituencies respectively.
While announcing by-polls to the Rajya Sabha vacancies on July 5, the poll panel had clarified that the vacancies for by-polls to the Upper House are considered "separate vacancies" and separate notifications are issued and separate polls are held, though the schedule can be the same.
As per the petition filed by Pareshbhai Dhanani, Congress MLA from Amreli and Leader of Opposition in Gujarat Assembly, the scheme of proportional representation by means of single transferable vote to Rajya Sabha as mandated by Article 80(4) of the Constitution will be defeated if polls are not held simultaneously.
Countering this argument, the ECI has said that system of proportional representation does not require the holding of a joint election for separate vacant seats. The requirement of proportional representation by a single transferable vote is essentially a method of voting, which provides an elector as many preferences as there are candidates in contrast to the first past the poll system where each elector's choice is restricted to one of the candidates. Referring to a Delhi High Court decision in Satyapal Malik vs ECI, it is stated that this system applies even in case of a solitary vacancy.
The procedure for election adopted even to one seat of the Upper House complies with the constitutional requirement of proportional representation, the Commission adds.
Also, referring to the language of Section 147(1) of the Representation of the People Act, the ECI contends that separate by-elections have to be held for casual vacancies which arise before the expiry of the term. According to the Commission, vacancy arising due to the election of a RS member to the LS as per Section 69(2) of the Act is a "casual vacancy".
"it is clear that the Act contemplates the conduct of separate elections for each casual vacancy that may arise from time to time", states the affidavit.
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 abuse of power in as much as the majority party will always be able to arrange the matters in such a way that it gets maximum seats.
The ECI has however referred to a 1994 judgment of the Delhi High Court in A K Walia v Union of India, which had upheld holding of separate elections even for regular vacancies which arise after the completion of term of the member. The 2009 judgment in Satyapal Malik case had also upheld separate polls.
" in so far as casual vacancy is concerned holding of a joint election is not mandatory even if more than one casual vacancy occurred at about the same time", the HC had observed in Satyapal Malik case.
The maintainability of the petition has also been questioned by the poll panel by citing Article 329(b) of the Constitution, which bars judicial interference after elections are notified.
In the 182-member House in Gujarat Assembly, BJP has 100 members and the Opposition-led by Congress 75 members, while seven seats are vacant.
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