Giving a new twist to the high-profile edge-of-the-seat contest in the Gujarat Rajya Sabha elections, the Election Commission on Tuesday night ordered rejection of the votes cast by rebel Congress candidates Bhola Bhai Gohil and Raghavji Bhai Patel that could boost the chances of senior Congress leader Ahmed Patel.
"The Commission has viewed the video recording of the votes cast by the said two MLAs and it has been observed therefrom that the said two electors violated the voting procedure and secrecy of the ballot papers cast by them when they cast their vote," said the order of the two-member commission which overturned the returning officer's decision to reject the Congress complaint in this regard.
Chief Election Commissioner A.K. Joti and Election Commissioner O.P. Rawat were acting on a complaint by the Congress seeking rejection of the two votes on the ground that the two candidates showed their ballots to BJP President Amit Shah, Union Minister Smriti Irani and Balwantsinh Rajput, all three BJP candidates in the election.
"Therefore, having regard to the above constitutional legal and factual position, the Commission, hereby directs under Article 324 of the Constitution read with section 66 of the RP Act 1951, rules 39 A and 39 AA of the conduct of election rules, 1961 and all other powers enabling it in this behalf, the Returning Officer to reject the votes cast by the said two MLAs, namely Bhola Bhai Gohil and Raghavji Bhai Patel, at the time of counting of votes by segregating the ballot papers concerned.
"Such segregation can be done at the time of counting with reference to the serial numbers of the ballot papers issued to the voters concerned as per the record maintained on the counterfoils of ballot papers under Rule 38 A.
"For this purpose, before commencement of counting, the ballot papers in question shall be segregated by verifying the serial numbers printed on the reverse side of the ballot papers. While so segregating, the ballot papers shall be kept by the returning officer upside down because the serial number of the ballot papers are printed on the reverse side of ballot papers. After so segregating the said two ballot papers, the returning officer shall proceed with the counting," the Commission said in its order to the returning officer.
The order noted that the returning officer had mentioned in his evening report seeking permission for starting the counting of votes that during the course of the poll the Congress polling agent submitted two written applications for rejection of votes tendered by Gohil and Patel for violation of procedure of rules as they showed their marked ballot papers to besides authorised representatives of the Congress even to others.
The returning officer had reported that he had examined the complaints and viewed the video-recording of the polling process and rejected the objection raised by Congress election agent.
When the Commission was considering RO's request, a Congress delegation comprising R.S. Surjewala and R.P.N. Singh met the Commission and represented that the RO had improperly rejected the objection of Congress candidate's agent. Ahmed Patel also sent an email to the Commission with the same request that the two votes be cancelled after calling for video recording for its own viewing.
This was followed by a BJP delegation led by Arun Jaitley requesting for early commencement of counting contending mainly that RO is statutory authority to conduct the polling and the counting process and to decide the validity or otherwise of a ballot paper. The Commission has no power as the field is already covered by the enacted laws, the BJP delegation contended.
They also asserted that the concept of secrecy in Rajya Sabha elections is no more valid because the parliament has made elections to Rajya Sabha through open ballot.
Subsequently, another delegation of Congress led by Ghulam Nabi Azad met the commission and made the same points that were made by Surjewala.
The BJP delegation led by Jaitley met the Commission the second time and reiterated the stand taken by them and requested for early decision for commencement of counting.
The Commission considered both the demands and obtained the video-recording of the polling process to ascertain the facts and examined the constitutional and leagal provisions.
Citing rules, the Commission order said an elector in Rajya Sabha election has to show his marked ballot paper only to the authorised representative of the party he belongs to and to no one else.
In the case of independent members, they are not to show their ballot to any one at all.
"Thus, even the provision of open voting at Rajya Sabha elections does not mean that the principle of secrecy of vote has been given a complete go by and that the ballot paper of an elector can be shown to, or be seen by, any person present in the place of poll," the order said.
Consequently, it said if a marked ballot paper by an elector is shown to or be seen by anyone other than the authorised representative, which may violate the secrecy of vote, has to be rejected by the returning officer by recourse to rules.
This, the Commission, said unambiguously made clear in its hand book for returning officers and upheld by the Supreme Court in several cases.