NE LEGAL BUREAU
NEW DELHI, DEC 14
External Affairs Minister S Jaishankar told the Supreme Court Monday that there is no provision in the Constitution or the election law which prescribes the mandatory requirement of conducting an election through a single by-election.
The submission was made in an affidavit filed by the minister in response to a petition by Congress leader Gaurav Pandya assailing his election to the Rajya Sabha.
“There is no provision in the Constitution or under the Representation of People Act which prescribes for the mandatory requirement of conducting election through a single by-election in the Constitution of India or under the Representation of People Act and therefore there is no violation of any law in the facts and circumstances of the present case,” the minister said in an affidavit filed before a bench headed by Chief Justice S A Bobde which adjourned the case for detailed hearing in the third week of January 2021.
Jaishankar, who defended his election to Rajya Sabha, further submitted that right to contest the election or to question the election through election petition is a statutory right regulated by the statutory provisions of the Representation of People Act and therefore outside the statutory provisions, there is no right to dispute the election.
“The appellant has and continuously being misusing the process of law by preferring several election petitions and appeals before this court which does not conform to the basic statutory requirements of the enactment,” the affidavit said.
The top court had earlier issued notices on a batch of petitions challenging the election of External Affairs Minister to Rajya Sabha from Gujarat.
The pleas have also raised the issue of the Election Commission’s power on the issuance of separate notifications for holding by-polls for casual and regular vacancies in Rajya Sabha.
Earlier, the top court had said that it would like to give an authoritative pronouncement on the issue of EC’s power on the issuance of separate notifications for holding by-polls for regular and casual elections to fill vacancies in Rajya Sabha.
The pleas pertained to the 2019 Rajya Sabha by-poll on two seats from Gujarat and both seats were won by BJP candidates.
Earlier, the apex court had said that there was no authoritative judgment of the Supreme Court as to whether the election to more than one vacancy should be held separately or jointly.
The Gujarat High Court, on February 4, had dismissed the plea of Congress leader Gaurav Pandya against 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 the High Court order dismissing their election petitions against Thakore.
Both Jaishankar and Thakore were elected to Rajya Sabha on July 5 last year in by-polls 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 by-polls.
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.
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.
