The Gujarat High Court on Tuesday, 12 May 2020 held the election of Bhupendrasinh Chudasama from Dholka constituency to be invalid. The Court based its decision on grounds of malpractice and manipulation, as a violation of The Representation of People’s Act, (Ashwinbhai Kamsubhai Rathod v. Bhailalbhai Kalubhai Pandav, Bhupendrasinh Manubhai Chudasama and ors., C/EP/3/2018).
Brief Facts of the Case
The petitioner had challenged the validity of the results of the Gujarat State Assembly elections held in December 2017. Here, the illegally excluded ballot papers are 429. The Returning Officer Dhaval Jani was there during the vote count. BJP leader Bhupendrasinh Chudasama won the said election by a margin of 327 votes. He is currently in charge of several portfolios in the Vijay Rupani government. They include education, law and justice, legislative and parliamentary affairs. The petitioner Ashwinbhai Rathod had the second-highest number of votes in the Dholak constituency. So he is asking to declare this election as void under the Representation of the People’s Act, 1951. He was also to be a returning candidate in the said election in place of Chudasama.
Issues
The issues formed by the Honourable Court in this matter were about the ability of the petitioner to prove:
1.) Whether the procedure adopted for counting of votes for ‘58-Dholka Constituency’ was against the orders of the Election Commission of India. If yes, then was it legal?
2.) Whether 429 postal ballot papers were illegally rejected at the time of counting of votes? Whether this caused discrepancies in figures of total votes polled?
3.) Whether any objections are raised at the time of counting of votes. If yes then did it have any larger effect on the result of the elections, regarding Chudasama?
4.) Or is there any corrupt practice under Section 123 of the Representation of the People Act, 1951 during the election?
5.) Whether the election is void under Sec. 100(1)(d)(iii) of the Representation of People Act, 1951?
6.) Whether the election of Chudasama needs to be declared as void under Sec. 100(1)(d)(iv) and Sec. 100(1)(b)of the Representation of People Act, 1951?
7.) Whether the petitioner is entitled to be declared as the duly elected candidate from Dholka Constituency?
Contentions of the Petitioner
Mr. Rathod, the advocate on behalf of the petitioner, submitted that 429 postal ballot papers had been illegally excluded from consideration. The commission of this act took place during the vote count by the Returning Officer Dhaval Jani. He argued that the election records had been tampered with. Hence, there were two Final Result Sheet Forms-20 showing two different figures of votes received through postal ballot. The Returning Officer defied the procedure for counting votes by the Election Commission to conceal this manipulation.
Thereby, Chudasama with the help of the returning officer had been indulging in and committing corrupt practices, as defined under Section 123(7) of Representation of the People Act, 1951. Thereafter, the petitioner’s request of re-counting of the votes, as well as the issuance of the record of videography of the complete counting of votes, was also denied by the Returning Officer.
Chudasama was the Revenue Minister at the time of the previous election and Dholka was his home constituency. The posting of the returning officer as the Deputy Collector of Dholka at the relevant time took place under the minister’s influence.
The presence of Chudasama’s Additional Private Secretary in the counting hall, at the time of counting votes, is an extra factor which aggravates the corrupt practice. It also amounts to ‘booth capturing’ under Section 123 (8) read with Section 135-A of the Representation of People Act, 1951.
Contentions of the Respondents
Chudasama had denied all allegations of the corrupt practices against him. He says that that non-compliance of the instructions of the Election Commission of India, if any, e.g. recounting and re-verification of postal ballots; sequence of counting of postal ballots vis-a-vis counting of votes through EVMs; prohibition to bring a mobile phone in the counting hall etc., would not fall within the ambit of ‘breach of any provision of the Constitution or Act or any Rule or Order made under the Act’.
So, this election is not void under Section 100(1)(d)(iv) of the Representation of People Act, 1951. He also submitted that the Returning Officer had rejected 429 Postal Ballots even before opening the cover Form No.13-B. Hence, those postal ballots were not ‘votes’ in view of Rule 54-A of the Conduct of Election Rules. Thus, their rejection would not constitute cancellation of votes. Therefore it is not void under Section 100(1)(d)(iii) of the Representation of People Act, 1951.
Presence of any person which may have to deal with Chudasama cannot be termed to be consent from the Minister. Hence, it was submitted that the same should not be stretched as booth capturing. The above-mentioned submissions prove that the petitioner has been able to prove none of the issues. Therefore, the Court should not declare the election in question as void under any of the contingencies provided under Section 100 of the Representation of People Act, 1951. Thus, there is no question of declaring the petitioner as the returned candidate.
Order by the Court
The Gujarat High Court relied on various documentary and oral evidence presented and the submissions made by the petitioner and the respondent. On 12 May 2020, the court passed an order partially allowing the petitioner’s election petition. It was held that the petitioner has succeeded in proving three different grounds which had strongly affected the results of the election in question. These three grounds were-
- Illegal rejection of 429 votes
- Illegalities in the procedure adopted for counting of votes
- Commission of ‘corrupt practice’ as defined under Section 123(7)
The court declared the December 2017 election of the Law Minister from Dholka Constituency to be void under Section 100(1)(d)(iii), Section 100(1)(d)(iv) and Section 100(1)(b) of the Representation of the People Act, 1951. The Court, although dismissed the prayer of the petitioner to declare him as the returned candidate. The request made by the respondents to stay this order for some time was also rejected. Justice Paresh Upadhyay further ordered the communication of this order to the Election Commission of India and the Speaker of the Gujarat Legislative Assembly.
Post-Order
The Respondent, Mr. Chudasama, has moved an appeal under Section-116A of the Representation of the People Act, 1951 against the order of the Gujarat High Court in the Supreme Court, one day after the pronouncement of this judgement. The Petitioner, Mr. Rathod, too has moved the Apex Court in a caveat application, asking the Court to not do anything in the matter without delivering notice to the Congress leader.
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