Paresh Dhanani, Election Commission, Supreme Court
Paresh Dhanani, Election Commission, Supreme Court
Litigation News

Supreme Court agrees to hear Congress leader's plea challenging poll through postal ballot for Rajya Sabha, refuses to stay election

Shruti Mahajan

The Supreme Court today agreed to hear a petition filed by the Leader of Opposition in Gujarat Assembly, Paresh Dhahani seeking to quash the Election Commission's notification for holding biennial Rajya Sabha polls though postal ballot.

The Court, however, refused to stay the elections for Upper House and fixed the date for hearing Dhahni's plea after ensuing summer vacation. (Paresh Dhanani vs Election Commission of India)

Senior Counsel Abhishek Manu Singhvi mentioned the petition, which was filed early this morning, before the Bench of CJI SA Bobde with Justices Dinesh Maheshwari and AS Bopanna when it assembled.

While the Court agreed to hear the plea and granted time to Election Commission of India (ECI) to file an affidavit, if any required, it refused to stay the biennial Rajya Sabha polls.

"The Petitioner is directed to serve the copy of this petition upon the respondent forthwith. The respondent may file reply affidavit, if any, in the meantime," the Court recorded in its order.

Dhanani's petition says that the notification issued by the ECI on June 17 allowing for RS polls to be held through postal ballots, just one day ahead of the election was scheduled to be held, goes against Rule 39AA of the Conduct of Election Rules of 1961.

This rule requires an elector to show their ballot paper to the agent of its political party before such ballot paper is inserted in the ballot box. This Rule is put in place to ensure that the whip issued by the political parties is followed stricto sense and, therefore, it prescribes that an elector must show the ballot paper to the agent of the political party.

Further, a challenge is also mounted against the notification on the grounds that the provisions under the 1961 Rules require that a notification is issued by the ECI notifying which members can be allowed to vote through postal ballots. The same is prescribed to be done prior to the last day of withdrawal of nominations, Dhanani's plea points out.

In that sense, the ECI's Notification of June 17 is itself in violation of the 1961 Rules, the Congress leader argues in his petition. The petition adds,

"The Respondent Commission has completely overlooked that no person has notified its need for postal ballots till date and in the absence of an appropriate notification issued as per Rule 68 of the 1961 Rules, the use of postal ballots is completely arbitrary and contrary to the rules."

This notification was issued without holding consultation with any party, it is further pointed out.

The "virtual dilution" of Rule 39AA of the 1961 Rules in the process of issuing this notification goes completely against the intent of Schedule X of the Constitution of India, the plea adds, while praying for the quashing of the notification under challenge.

As an alternative to quashing the notification, Dhanani's plea seeks a direction for the ECI to ensure that polling is held without any coercion or duress and that each polling is videographed by a neutral agency, while preserving the secrecy of the elector.

The petition is drawn by Advocates Varun Chopra, Gurtejpal Singh, and Shubhan Sharma.

Read Petition:

Paresh Dhanani vs Election Commission of India (Writ Petition).pdf

Read Order:

Paresh Dhanani vs ECI - 18.06.2020.pdf
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