EC's order on RS poll enhances its independent status

When an old Gujarat hand Achal Kumar Joti was named the new Chief Election Commissioner (CEC) last month to replace retiring  Nasim Zaidi, there was hush-hush talk in the opposition circles as to whether the poll panel be able to stave off "undue influence" from the government under Prime Minister Narendra Modi. 

But the Election Commission's decision late Tuesday night to nullify the votes of two rebel Congress MLAs - Bhola Bhai Gohil and Raghav Bhai Patel- in the face of heavy pressure from the BJP leaders has enhanced its standing.

That decision, which was taken on a complaint of the Congress, altered the outcome of a high stakes political drama.

Consequent to the declaration of two rebel Congress votes as "invalid," Congress leader Ahmed Patel was re-elected easily by a single vote to the Rajya Sabha from Gujarat, along with BJP president Amit Shah and Union Minister Smriti Irani.

The EC's gamechanger move came after the Congress had complained to it that the two rebel MLAs showed their votes to unauthorised persons and demanded their votes should not be counted and should be rejected.

According to the rules, the voters (MLAs) for the Rajya Sabha elections have to show their ballots to authorised representative of their respective parties before casting them.

The Congress held that these MLAs showed their votes to Shah and Irani and independent candidate Balwantsinh Rajput, instead of the representative of Ahmed Patel.

Not to be outdone, a delegation of BJP leaders, including Union ministers Arun Jaitley, Ravi Shankar Prasad and Piyush Goyal, approached the EC demanding immediate counting of votes, contending that validity of votes once put in ballot boxes could not be questioned.

The Congress said it had to move the EC as the Gujarat Returning Officer (RO) rejected its plea and instead sought permission from the poll panel to go ahead with counting of votes at 5.30 pm after the polling was over

The Returning Officer  told the EC that the 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 Congress’ election agent Shailesh Bhai Parmar."

As both sides mounted immense pressure on the EC to accede to their respective pleas, the EC decided to do a carefully examine the video in the presence of Chief Election Commissioner Achal Kumar Jyoti.

The BJP delegation, which was led by Jaitley comprising law minister Ravi Shankar Prasad, petroleum minister Dharmendra Pradhan, power minister Piyush Goel and commerce minister Nirmala Sitharaman, sought an early commencement of the counting. They argued twice before the poll panel that ‘the Returning Officer is the statutory authority to conduct the polling, counting process and to decide the validity of a ballot paper as per the rules and the Commission has no power as the field is already covered by the enacted laws’.

Countering this position, the Congress team led by the leader of opposition in Rajya Sabha Ghulam Nabi Azad and former finance minister P Chidambaram said it expected "justice" from the poll panel as it was the final authority and not the RO.

At one point, as delegations from the Congress and the BJP made repeated representations, the EC said it would not receive any more delegation.

After going through the video, the EC decided to overrule the Returning Officer’s conclusion, sending shock waves to the BJP establishment. 

The poll panel found that "it has been observed therefrom that the said two electors( two rebel Congress MLAs)  violated the voting procedure and secrecy of the ballot papers cast by them when they exercised their right to vote."

CEC Achal Kumar Joti and EC  O P Rawat, who was also appointed by the NDA government, cited a judgement by a  five-judge bench of the Supreme Court had held that open ballot  in the Rajya Sabha election only means that "the MLA can show the vote to the authorized representative of his party and no one else."

Their order said: ‘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 the 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 X. This position has been upheld by the Supreme Court in Kuldip Nayar vs Union of India and Others (AIR 2006 SC 3127) 10."

A 1975-batch IAS officer, Joti lived up to his reputation as "a hard task master, who prefers to go by the rule book," said a poll official. It was no surprise that the EC took this decision because Joti always believed in following the rules and enforcing them during elections.

Joti, who will remain as the head of the poll panel until January 17 next year, was chief secretary of Gujarat when Narendra Modi was the chief minister. He retired as Gujarat chief secretary in January 2013 after serving in various capacities in Gujarat, including as chairman of the Kandla Port Trust between 1999 and 2004, and managing director of the Sardar Sarovar Narmada Nigam Ltd.

As old timers recalled, Joti maintained a cordial working relationship with Modi when he was Gujarat CM enjoying his full trust.

But on Tuesday, Joti had a different task to perform as the Chief Election Commissioner.