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The Supreme Court (SC) today (Tuesday, June 25) rejected Congress Gujarat unit’s petition challenging Election Commission’s (EC) decision to hold separate by-polls for two Rajya Sabha seats from Gujarat, which fell vacant due to the election of Amit Shah and Smriti Irani to Lok Sabha.

The elections will be held on July 5. The BJP yesterday named External Affairs Minister and former foreign secretary S Jaishankar as its candidate for a Rajya Sabha seat from the state, hours after he joined the party in the presence of its working president JP Nadda. Jugalji Mathurji Thakor is BJP’s candidate for the second seat.

The SC, while refusing to interfere with the EC’s decision, ruled that the courts could not intervene once the poll panel issues the order. The top court said the law is clear that the only way to challenge the election is to file an election petition.

“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. The court can’t intervene after the EC issues notification for polls,” said the Supreme Court bench of Justices Sanjiv Khanna and BR Gavai. “What’s the violation of fundamental rights here?” the court told the Congress lawyer Vivek Tanka.

“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 EC’s lawyer Rakesh Diwedi.

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The EC, in its affidavit filed in reply to the petition, reiterated that the two seats were casual vacancies, and there was nothing in the law which said separate elections should not be held for them.

Pareshbhai Dhanani, Congress MLA from Amreli and Leader of Opposition in Gujarat Assembly, had asked the top court to order the poll panel to hold the by-polls simultaneously.

The petition filed by Dhanani challenged the EC’s classification of the two vacancies as “casual” for conducting separate by-polls, and emphasised that Section 69 (2) of the Act, read with Section 67A and Section 68(4), makes them “statutory vacancies”.

The two Rajya Sabha seats in Gujarat fell vacant after Shah and Irani were elected to the Lok Sabha from the Gandhinagar and Amethi constituencies respectively. Their Rajya Sabha terms were to end in August 2023.

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Separate by-polls for the two seats means the BJP candidates are most likely to win both seats. With 100 out of 175 MLAs at present (full strength is 182), the BJP is way ahead of second-placed Congress at 71. Each of these MLAs will be voting in two different elections.

The Congress alleged that the poll body–by notifying separate elections –had adopted a new method of conducting elections and was acting under pressure.

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The EC had opposed any interference by the Supreme Court in the Gujarat RS by-polls process, arguing that once the by-polls were notified the jurisdiction of the courts was barred. The EC had also cited precedents of holding RS by-polls separately along with court endorsements of the past instances.

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