Election Commission of India
ASHOKA ROAD, NEW DELHI – 110 001
In Re : Biennial Election to the Council of States by the elected members of the Legislative Assembly of Gujarat – 2017.
The President of India, by his Notification dated 21′ July, 2017, under Section 12 of the Representation of the People Act, 1951 (hereinafter 1951-Act), called Biennial Elections to the Council of States by, among others, the elected members of the Legislative Assembly of Gujarat to elect three members to the said Council whose term of office is expiring on 18th August, 2017.
2. The programme notification issued by the Election Commission under Section 39 of the said 1951-Act fixed, inter alia, 8th August, 2017, as the date of poll for the aforesaid election by the elected members of the Gujarat Legislative Assembly. As scheduled, the poll was taken on today, between 9.00 a.m. to 04.00 p.m. As per the report of the Returning Officer after completion of poll, 176 out of 182 members of the Gujarat Legislative Assembly (6 seats being vacant in the Assembly) voted at the election. In his report submitted by the Returning Officer to the Commission seeking permission to commence the counting of votes, which was received by the Commission at about 05.19 p.m., the Returning Officer mentioned, inter alia, that during the course of poll, the election agent of Congress Party sponsored candidate Shri Shailesh Bhai Parmar, submitted two written applications for rejection of votes tendered by the two voters, namely, Shri Bhola Bhai Gohil and Shri Raghavji Bhai Patel, for violation of the procedure laid down under Rule 39AA of the Conduct of Elections Rules, 1961, as they showed their marked ballot papers, besides authorized representatives of the Congress Party, even to others. The Returning Officer further reported that the said complaints were examined by him and even the video recording of the polling process was viewed and pursuant to that he rejected the objection raised by the election agent Shri Shailesh Bhai Parmar. The Returning Officer has accordingly sought permission of the Commission to commence the counting of votes.
3. When the matter was under the Commission’s consideration, a delegation comprising Shri R.S. Surjewala and Shri R.P.N. Singh, of the Indian National Congress met the Commission at about 05.30 p.m. today and represented to the Commission that the Returning Officer had improperly rejected the objection of the authorized representative of the Congress candidate and contended that the said two voters had violated the secrecy of votes by not complying with the voting procedure. They also submitted that the Commission can verify the position by calling for the video recording for its own viewing. Shri Ahmed Patel, candidate of INC, also sent an email to the Commission with the same request as that of his party viz. cancellation of the aforesaid two votes for violation of the voting procedure.
4. Immediately, thereafter, a delegation of Bharatiya Janata Party led by Shri Arun Jaitely, Shri Ravi Shankar Prasad and others also met the Commission and requesting for early commencement of counting, contending mainly that the Returning Officer is the statutory authority to conduct the polling and counting process and to decide the validity of otherwise of a ballot paper as per the laid down rules and Commission has no power as the field is already covered by the enacted laws. They also added that the concept of secrecy in the elections to the Rajya Sabha is no more valid because the Parliament itself has made elections to the Rajya Sabha through open ballot. Subsequently, another delegation of the INC led by Shri Gulam Nabi Azad again met the Commission and reiterated their submissions made earlier by Shri Surjewala. The RIP delegation led by Shri Arun Jaitely also again met the Commission and reiterated the stand taken by them earlier and requested for early decision of the Commission for commencement of the counting of votes.
5. Taking into consideration the above complaints and counter complaints of the Indian National Congress and BJP, the Commission considered it appropriate to obtain the video recording of the polling process to ascertain the true facts relating to the above controversy. Accordingly the relevant portions of the video recording were obtained from the Returning Officer by the Commission. The Returning Officer transmitted only that relevant portion from the video recording which showed the votes being cast by the said two MLAs.
6. The Commission has carefully considered the complaints and counter complaints of both the political parties and also examined the relevant constitutional and legal provisions as also taken into account the factual position as observed from the video recording.
7. Section 59 of the Representation of the People Act, 1951, provides that, at every election where a poll is taken, votes shall be given by ballot in such manner as may be prescribed. The proviso to the said Section 59 further provides that votes at every election to fill a seat or seats in the Council of States shall be given by ‘open ballot’. Thus, the said Section 59 which is the main provision regulating the voting at elections provides for the manner to be prescribed for taking the poll even in the case of open voting at elections to the Rajya Sabha.
8. The relevant Rules in this behalf for taking poll at elections to the Rajya Sabha are contained in Rule 70 of the Conduct of Elections Rules, 1961, which makes the provisions of Rules 28 to 35 and 36 to 48 of the said Rules (which prescribe the manner for voting at elections to Lok Sabha and State Legislative Assembly) applicable to Rajya Sabha elections, with such modifications as are prescribed under the said Rule 70 itself.
9. The Rules relevant to the controversy in the present case are Rule 39A and Rule 39AA. A combined reading of the said two Rules will show that an elector at the Rajya Sabha election has to show his marked ballot paper to the authorized representative of the political party to which he belongs, before inserting that ballot paper into the ballot box. The Rule is very clear that the elector has to show his ballot paper only to the authorized representative of his party and to no one else. In the case of independent members of the Assembly, he is not to show his ballot paper to anyone at all. Thus, even the provision of the open voting at Rajya Sabha elections does not mean that the principle of secrecy of vote has been given a complete go bye and that the ballot paper of an elector can be shown to, or be seen by, any person present in the place of poll. Consequently, if a marked ballot paper by an elector is shown to or be seen by anyone other than the said Representative, which may violate the secrecy of vote has to be rejected by the Returning Officer by recourse to the provisions of Sub-Rule (5) to (8) of Rule 39A read with Rule 39AA. This position has been unambiguously made clear by the Commission in the Handbook for Returning Officers (for Elections to the Council of States and State Legislative Councils) 2016-Edition vide Para 35 (ii) in Chapter XI (i). This position has been upheld by the Hon’ble Supreme Court in Kuldip Nayar Vs. Union of India and Ors (AIR 2006 SC 3127).
10. The Hon’ble Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner and Others (AIR 1978 SC 851) has laid down that Article 324 of the Constitution is a reservoir of power for the Commission to act in those vacuous areas where either the law made by the Parliament is silent or makes insufficient provision to deal with a situation in the conduct of elections. Here, in the present case, the Returning Officer has not taken the two ballot papers in question back from the voters concerned and the same have been inserted into the ballot box. Rules 39A and 39AA do not expressly provide as to what the Returning Officer should do. In the circumstances, Article 324 of the Constitution would empower the Commission to issue appropriate directions to the Returning Officer.
11 . It is also be relevant to point out that under Section 66 of the Representation of the People Act, 1951, the Returning Officer can be directed by the Election Commission not to declare the result of election without the permission of the Commission at all elections, including electors to Rajya Sabha. In the case of Rajya Sabha elections, the Returning Officer has to send a report to the Election Commission after the close of poll seeking permission to commence the counting of votes. Further, he has to again seek permission of the Commission to declare the result after the counting of votes has been completed. These instructions of the Commission have been issued keeping in view the provisions of said section 66.
12. 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 exercised their right to vote.
13. 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 Representation of the People Act, 1951, Rules 39A and 39AA of the Conduct of Elections 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, Shri Bhola Bhai Gohil and Shri 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 electors concerned as per the record maintained on the counter foils of ballot papers under Rule 38A. 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 numbers of the ballot papers are printed on the reverse side of the ballot papers. After so segregating the said two ballot papers, the Returning Officer shall proceed with the counting as per the law.
(O.P. RAWAT) (A.K. JOTI)
ELECTION COMMISSIONER CHIEF ELECTION COMMISSIONER
Place: New Delhi
Date: 8th August 2017