Gujarat RS poll: ECI orders cancellation of votes cast by two rebel Congress MLAs

Ahmed Patel
Ahmed Patel
In a significant move, the Election Commission today directed the Returning Officer for the biennial elections for three seats to the Rajya Sabha from Gujarat to reject the votes cast by two Congress MLAs who had voted against the party's candidate Ahmed Patel, the hugely influential Political Secretary to Congress President Sonia Gandhi.
In its order on a petition by the Congress, the Commission said this could be done at the time of counting of votes by segregating the ballot papers concerned after it found that the MLAs had violated the procedures by showing the ballot papers to persons other than their party's authorised agent.
"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 teh 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," the order, signed by Chief Election Commissioner A. K. Joti and Election Commissioner O. P. Rawat, said.
The objections raised by the Congress on the votes cast by the two rebel Congress MLAs, Raghavji Patel and Bholabhai Gohil, delayed the counting of votes in the election, which has turned out to be the most fiercely contest ever for a Rajya Sabha seat.
The two MLAs were accused by the Congress of having shown their ballot papers to BJP President Amit Shah and Union Minister Smriti Irani before putting it in the ballot box. The rules clearly say that the MLA must show the ballot paper to his or her party's authorised agent but not to anyone else. Doing so would lead to cancellation of the votes.
Mr. Patel, 67, is seeking a fifth consecutive term in the Rajya Sabha, but a series of dramatic developments over the past few weeks made it a contest that literally went to the wire.
The BJP has fielded Mr. Shah, Ms. Irani and former Congress MLA Balwant Singh Rajput for the three seats, for which polling was held today.
Polling began at 9 am and ended at 4 pm and counting of votes was scheduled to be taken up at 5 pm, but the process was held up after the Congress complained about the two MLAs.
A Congress delegation consisting of Mr. Randeep Singh Surjewala and Mr. R. P. N. Singh, among others, first approached the Election Commission of India (ECI) in Delhi in this regard. 
In its memorandum, the Congress said the two Congress MLAs had shown their ballot papers to persons other than the authorised Congress agent and thus violated the provisions of Rule 39 of Conduct of Election Rules, 1961. Therefore, it said the votes cast by the two MLAs should be cancelled for the reason of "voting procedure violated".
The memorandum said the Congress had protested about this to the Returning Officer and had urged him to cancel the votes of the two MLAs. "The videography of the entire process is available with the Returning Officer and he may be immediately directed to follow the law in letter and spirit," it said.
"In view of the above, we request your good offices to kindly forthwith issue directions to the concerned RO to cancel the votes cast by the aforesaid MLAs," it added.
Congress approaches EC, demands quashing of two MLAs' votes
Shortly after that, a high-level BJP delegation, led by Finance Minister Arun Jaitley and including Union Ministers Ravi Shankar Prasad, Piyush Goyal, Nirmala Sitharaman and Dharmendra Pradhan, met the Election Commission and urged it to reject the Congress plea and start the process of counting of votes immediately.
Mr. Prasad, the Law Minister, told newspersons that the Congress had not raised any objections throughout the day and had raked up the issue only when it realised that Mr. Patel was losing. According to him, the Congress had also not raised the issue when the Returning Officer issued the Form 6 detailing the number of votes cast in the election and such other details.
In Ahmedabad, Mr. Patel said they had, in fact, complained to the Returning Officer about the votes of the two MLAs but no action had been taken. About the delegation of Ministers meeting the Election Commission, he said it was a sign of the panic within the ruling party.
The two MLAs against whom the Congress has complained belong to the Shankarsinh Vaghela group, which has dissociated itself from the Congress on July 21 but had not resigned their seats in the State Legislative Assembly.
"They had voted for the BJP. After showing their ballot to me, they also flashed their ballot to the side where Amit Shah was sitting, and there is a video of this," Gujarat Congress leader Shaktisinh Gohil said.
Shortly after the BJP delegation left, a delegation of top Congress leaders, including Mr. P. Chidambaram, Mr. Ghulam Nabi Azad, Mr. Ashok Gehlot and others, met the Chief Election Commissioner.
Mr. Chidambaram told newspersons later that the Conduct of Election Rules, read with circulars issued by the Election Commission, clearly require the Commission to cancel the two votes. He cited the precedents of the June 11, 2016 Rajya Sabha elections in Haryana, when a vote was cancelled for a similar reason, and another in 2000 in Rajasthan.
"There is ample evidence that the votes of the two MLAs were seen by two or three persons other than the authorised person. Those two ballot papers, which were in favour of the BJP, must be rejected. The Election Commission cannot folow anything except its own precedents in this matter," he asserted.
Mr. Chidambaram said the delegation had also impressed upon the Commission that it was the only Constitutional authority in the matter and it must decide the issue. He said the Returning Officer was an appointee of the Commission tasked with the conduct of the elections on the ground. "It must reject the two votes as it did in Haryana," he said.
About the BJP's argument that the Congress had raised the issue only when it feared it would lose the election, he said it was completely irrelevant. The question is whether the votes are liable to be rejected or not, he stressed. He also said the matter had been reported to the Returning Officer and the matter was taken to the Election Commission only when he did not act on their complaint.
Mr. Surjewala said the Commission had assured that it would look into the matter and uphold the Constitution and the secrecy of the ballot. He said the BJP, by sending a team of senior Ministers, was trying to put pressure on the Commission.
Mr. Jaitley and his colleagues in the BJP delegation returned to the Commission for another meeting with Mr. Joti and his colleagues. Mr. Prasad said they had once again impressed upon the Commission that the election process was over and counting of votes cannot be stalled in this manner. He also said the Congress allegations were baseless.
Both parties came back to the Commission a third time, as each side presented more documents to support their arguments.
The Commission said in its order that, as per the report of the Returning Officer after completion of poll, which was received by it at about 5.19 pm, during the course of poll, the election agent of the Congress candidate Shailesh Bhai Parmar submitted two written applications of votes tendered by the two voters, Bholabhai Gohil and Raghavji Patel, for violation of the procedure laid down by the Rules, besides authorised representatives of the Congress, even to others.
He said that he had examined the complaints and the video recording of the polling process and rejected the objection raised. He had accordingly sought permission of the Commission to commence the counting of votes
The order went on to refer to its meetings with the delegations of the Congress and the BJP in this regard. The Congress contended that the Returning Officer had improperly rejected its objection. Mr. Patel also sent an email to the Commission with the same request for cancellation of the two votes.
The BJP delegation contended that the Returning Officer was the statutory authority to conduct the polling and counting process and to decide the validity or otherwise of a ballot paper.
The Commission said it obtained and viewed the video recording of the polling process to ascertain the facts.
The order pointed out that an elector at the Rajya Sabha election has to show his marked ballot paper to the authorised representative of the political party to which he belongs, before inserting it into the ballot box. It also said the rule is very clear that the elector has to show his ballot paper only to the authorised representaive of his party and to no one else.
"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...," it said.
"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," the order added.
Meanwhile, the Congress claimed that Mr. Patel, the hugely influential Political Secretary to Congress President Sonia Gandhi, had got enough votes to retain his seat. The BJP, on the other hand, claimed that all its candidates would win.
In one of the closest electoral battles that he has ever faced in a long political career, Mr Patel, like the other candidates, needed 45 first preference votes to get through.
If Mr. Patel wins, it will be his fifth consecutive term in the Upper House of Parliament after earlier serving three terms as a Member of the Lok Sabha from Bharuch in Gujarat.
For Mr. Shah, it will be his first time as a Member of Parliament while it will be her second consecutive term for Ms. Irani.
The Congress claimed Mr. Patel had secured the votes of 43 of the 44 MLAs the party had taken to a resort to Bengaluru in Karnataka for about two weeks and for one day ahead of today's voting to a resort in Anand, about 80 km from Ahmedabad, to prevent alleged poaching attempts by the BJP.
The party said he had got the vote of the lone Janata Dal (United) MLA Chhotubhai Vasava and one of the two Nationalist Congress Party (NCP) representatives in the Assembly. The other NCP MLA Kandhal Jadeja had said that he would vote for the BJP.
The run-up to the election was marked by high political drama as the BJP pulled out all stops in a determined bid to deny Mr. Patel another term in the Rajya Sabha.
Given its 121 seats in the Assembly, the BJP was certain to win two seats, but it decided to field a third candidate in an effort to try and lure away some votes away from Mr. Patel and prevent his re-election.
Mr. Rajput was the Congress' chief whip in the state legislative assembly until recently and is one of the six Congress MLAs who had resigned from the party on July 27 and 28. Mr. Rajput and two others had joined the BJP on July 27 itself and was named as the BJP's nominee for the third seat the same evening.
With the resignation of the six MLAs, the effective strength of the House has come down to 176. The strength of the Congress in the Assembly has come down to 51. A candidate required one-fourth of the total votes plus one to get elected -- 45 votes at that stage.
With the cancellation of the two votes, the minimum number required for winning has come down to 44, something that would benefit Mr. Patel.
The resignations of the six MLAs had come only a few days after Mr. Shankarsinh Vaghela, one of the seniormost Congress leaders in the state, who was leader of the Opposition in the Assembly and is a former Chief Minister and Union Minister, parted ways with the Congress on July 21.
Soon after casting his vote today, Mr. Vaghela told journalists that he did not vote for Mr. Patel. "I have to say that I did not vote for my friend Ahmedbhai, and I regret that. But when it is clear that Mr. Patel that will not win, there was no point in wasting my vote on him," he said.
However, he did not indicate who he had voted for or whether he had exercised the "None of the above" (NOTA) option. "You will come to know that in the evening," he said.
Along with Mr. Vaghela, six of his supporters are also understood to have not voted for Mr. Patel.
While dissociating himself from the Congress at a function to celebrate his 77th birthday in Gandhinagar, the state capital near here, Mr. Vaghela had made it clear that he was not joining the BJP. He claimed the Congress had actually expelled him the previous day, something which the party denied.
Mr. Vaghela, who had turned a rebel within the BJP nearly two decades ago, had floated his own outfit, the Rashtriya Janata Party (RJP), which he finally merged with the Congress 17 years ago. 
The Congress said Mr. Vaghela had wanted to be appointed as the Gujarat Congress chief, a demand that the party could not accept. 
Mr. Vaghela's move had come just a day after the results of the Presidential election, which indicated that about 11 of the 57 Congress MLAs in the state then had voted for NDA candidate Ram Nath Kovind and against the Opposition nominee Meira Kumar.
Amidst fears of alleged poaching attempts by the BJP, the Congress had moved 44 of its MLAs on July 29 to a resort near Bengaluru in Karnataka, a state ruled by the party.
The MLAs returned to Gujarat yesterday morning and were taken to a resort near Anand. They travelled together in a bus to Gandhinagar to cast their votes.
The Congress had accused the BJP of using "money and muscle power" to engineer defections of its MLAs and complained to the Election Commission about the events in Gujarat.
The MLAs' stay in the Eagleton resort was not without drama. On the one hand, the BJP mounted strong criticisim of their travel outside the state when it was reeling under heavy  floods. On the other hand, Karnataka Energy Minister D. K. Shivakumar, who tasked by the Congress to look after the MLAs, found himself being raided by Income Tax officials. The Congress protested, saying the raids were politically motivated, while the Income Tax Department insisted they were part of an ongoing investigation against Mr. Shivakumar.
The latest developments have acome only a few months ahead of the elections to the State Assembly, expected to be held late this year. The Congress has been out of power in the state for more than two decades.
The biennial elections were necessitated by the expiry of the terms later this month of Mr. Patel, Ms. Irani and a third sitting member from Gujarat, Mr. Dilip Pandya.


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