(By Japan K Pathak) With Abhay Bharadwaj’s passing away today, Gujarat has lost two Rajya Sabha members in a week. Last week, another Rajya Sabha member Ahmed Patel passed away. By-polls for two vacant seats may take place anytime in the first quarter of the next calendar year.

Partywise stength in the assembly

The strength of ruling Bharatiya Janata Party in State assembly is 111, while Congress is at 65. Sharad Pawar led Nationalist Congress Party (NCP) has 1 MLA. Chhotu Vasava led Bharatiya Tribal Party has 2 MLAs. There’s one Congress aligned independent MLA also. The State assembly has 180 out of 182 MLAs at present, as two seats namely Dwarka and Morwa Hadaf are in litigation in higher courts with status unclear.

In case of regular Rajya Sabha election

Looking at party-wise strength in State assembly and also considering, that two vacant Rajya Sabha seats of late Ahmedbhai and Abhaybhai will witness by-polls with two separate notifications and separate polling for each of two seats, it is certain that BJP will win both seats. In regular election of Rajya Sabha seats, polling take place jointly through single notification. However in case of by-polls of Rajya Sabha, polling take place separately for each seat. So suppose if there’s regular Rajya Sabha election of two seats at this juncture, and there are only two candidates, then both will win unopposed. If there are three candidates then as per the present 180-strength of the assembly, minimum 61 first preference votes would be required for each of two successful candidates, while third candidate would lose the election. As Congress has 65 + party aligned independent MLA Jignesh Mewani, it can get one seat, if at least 61 of its MLAs cast votes perfectly as per party’s mandate.

But…..

But the catch is that, two seats will in all probability witness by-elections, and therefore as per the convention, notification and polling for each of two seats will be held separately. In this scenario, BJP is certain to win both seats comfortably. In fact, fielding a candidate will be meaningless for Congress in such scenario.

Rajya Sabha bypolls in Gujarat last year

Last year, Gujarat witnessed by-elections for two Rajya Sabha seats, as they were vacated by Amit Shah and Smriti Irani on their election to Lok Sabha. As this was not regular Rajya Sabha election, but by-polls, the Election Commission had announced separate election for each of two seats. The Election Commission had in its statement said: “It is further clarified that the vacancies for [byelections] to all Houses, including the Rajya Sabha, are considered as separate vacancies and separate notifications are issued and separate poll is taken for each of the vacancies although the programme schedule for the [byelections] may be common.”

So effectively, the Election Commission conveyed that every MLA will vote separately for the respective vacancies as both seats were going for by-polls and not regular polls.

The Election Commission had in its note further said that two separate notifications and separate polling for each of two seats is “in conformity with provisions of Sections 147 to 151 of the Representation of the People Act, 1951 and has been consistent practice of the Commission in such cases.”

The Election Commission had also referred to two Delhi High Court rulings in favour of separate elections, in 1994 and 2009. Under Sections 147 to 151 of the RP Act, all “casual vacancies” are filled by separate byelections. “This is not the first time; it has been happening for about the last 40 years. The first time the question arose was in 1984-85, when the Election Commission gave a detailed order saying that byelections have to be held separately. The Delhi High Court upheld it twice,” said S K Mendiratta, former legal adviser to the Election Commission to Indian Express last year, adding that, “Vacancies that happen after the term of an MP ends are usually filled together. They are regular vacancies,”.

The cases cited by the EC were A K Walia vs Union of India & Others, and Satya Pal Malik vs EC. The High Court upheld the EC decision in both. In the former case in 1994, the court dismissed a petition by a Congress MLA from Delhi who had argued that if one election was held for three seats, the possibility could not be ruled out that the result could be different from the outcome from three different elections.

Legal battle by Congress

In case of Rajya Sabha by-polls in Gujarat last year, the opposition Congress party had challenged separate notification and separate polling for two seats, as had there been one election for both seats, one of these would have seen a contest.

The leader of opposition Paresh Dhanani had filed plea in the Supreme Court against separate polling for each seat. However the Supreme Court had declined to entertain a petition to pass an order asking the Election Commission to conduct by-elections to the two Rajya Sabha seats in Gujarat simultaneously. Denying the request, the Supreme Court said that since the Election Commission had already issued a notification for the polls, the court could not interfere in the process. The Supreme Court asked Dhanani to file an election petition once polls conclude. After by-polls the Gujarat High Court had dismissed Congress leader Gaurav Pandya’s plea against BJP candidate Jaishankar’s election to the Rajya Sabha. Two other pleas filed by Congress leaders Chandrikaben Chudasama and Paresh Dhanani that challenged the election of BJP candidate Jugalji Thakor were also dismissed by Gujarat High Court. Petitioner Gaurav Pandya went to the Supreme Court with Senior advocate Kapil Sibal as lawyer. The Supreme Court had issued notices.

Full term, half term

Coming to two-seat by-polls in Gujarat, the candidate who would replace Ahmed Patel will have only three years term, or say just the leftover period of Ahmed Patel’s 6-year full term. Ahmed Patel was elected to Rajya Sabha in August 2017. The candidate who would replace Abhay Bharadwaj will have almost full six years term as Abhaybhai had taken oath in later half of July. So one successful candidate will have full term and the other would have half term.