New Delhi: The Supreme Court on Wednesday fixed the hearing on Tuesday on a Congress petition opposing separate by-elections on July 5 for two Rajya Sabha seats that fell vacant on election of home minister Amit Shah and Textile Minister Smriti Irani to the Lok Sabha, issuing a notice to the Election Commission to file its reply by Monday.
After hearing the EC’s counsel, the vacation bench of Justices Deepak Gupta and Surya Kant said the matter needs to be heard as to whether the two vacancies for which the election is taking place were constitutional or statutory. Justice Gupta stressed that "this is not something that can be treated as an election petition to be heard after the elections."
Gujarat Assembly Opposition leader Paresh Dhanani of the Congress has filed the petition challenging the June 15 notification of the Election Commission for six Rajya Sabha by-elections, including two from Gujarat.
Dhanani’s plea is that both Shah and Irani were elected to the Rajya Sabha on the same day and both also resigned on the same day and hence the by-elections to fill their vacancies should be held together and not separately.
The EC counsel contested filing of the petition under Article 32 of the Constitution on the ground that the right to be elected was a statutory right and not a constitutional one.
Article 32 that refers the remedies for enforcement of fundamental rights provides for the right to move the Supreme Court for enforcement of the fundamental rights guaranteed under the Constitution and not for the statutory rights.
Seeking the simultaneous elections for the two seats that became vacant after Shah’s election to the Lok Sabha from Gandhinagar and Irani from Amethi, Dhanani’s petition contends that the "exhaustive and detailed procedure in respect of election to Rajya Sabha recognised by the Supreme court itself, would be rendered otiose if the election for each vacancy were to be conducted separately."