Bhupendrasinh Chudasama’s election issue: Legal angle

Reading time: 8-10 minutes.

Amidst the grappling and struggles from the COVID-19 crises, the Vijay Rupani-led BJP government in Gujarat has suffered a significant blow from the Gujarat High Court on May 12th, wherein Justice Paresh Upadhyay via video conferencing has declared the election of Bhupendrasinh Chudasama from the Dholka Constituency of Gujarat as void on the grounds of malpractices and manipulation.

The 2017 Dholka Constituency election was a cut throat competition, where Bhupendrasinh Chudasama after securing 71530 votes emerged victorious by a wafer thin margin of 327 votes over the candidate of Indian National Congress Ashwin Rathod who secured a total count of 71203 votes!

Ashwin Rathod challenged the validity of the election in the Gujarat High Court on the ground that there was a manipulation of the voting process by the returning officer who illegally rejected/ excluded 429 postal ballot papers from consideration at the time of counting of votes.

Bhupendrasinh Chudasama moved to the Hon’ble Supreme Court just a day after the judgment was delivered by the Gujarat High Court challenging the same on the ground that the High Court had failed to appreciate proper facts of the case. “The High Court has reached a completely erroneous conclusion in holding the successful election of the petitioner as illegal and void,” the appeal said.

Facts of the case

Ashwin Rathod filled an Election Petition before the Gujarat High Court wherein he challenged the General Election to the Gujarat Legislative Assembly held in December 2017, for 58-Dholka Constituency.

In the present case Mr. Ashwinbhai Kamsubhai Rathod (the petitioner) was the candidate that was set up by the Indian National Congress Party for the said constituency whereas Mr. Bhupendrasinh Manubha Chudasama (the respondent) was the candidate set up by the Bharatiya Janta Party. The said election took place on the 14th of December 2017. The counting of votes for the said election was held on the 18th of December 2017 and the result of the same was announced on the same date. As per the result, Mr. Bhupendrasinh Manubha Chudasama (respondent No. 2) was declared as the returned candidate, by securing total 71530 votes, out of which 71189 votes were received through EVMs and 341 votes were received through postal ballots. The petitioner i.e. Mr. Ashwinbhai Kamsubhai Rathod secured a total of 71203 votes, out of which 70675 votes were received through EVMs and 528 votes were received through postal ballots.

The following were the grievances that were put forth by Mr. Ashwinbhai Kamsubhai (the petitioner): –

  • as against the victory margin of 327 votes, 429 postal ballot papers were illegally rejected / excluded from consideration by the Returning Officer, at the time of counting of votes, which has materially affected the result,
  • the exclusion of those 429 postal ballots was behind everybody’s back,
  • to conceal this exclusion, election record is systematically manipulated by the Returning Officer,
  • to manipulate the election record and in turn to conceal the said manipulation, all the orders / instructions of the Election Commission of India, including mandatory instructions, regarding procedure of counting of votes, preparation of election record and announcement of result were defied by the Returning Officer, on the day of counting of votes. 

He has further contended that Mr. Bhupendrasinh Manubha Chudasama has got all the above things done through the returning officer by virtue of his position as the Revenue Minister in furtherance of his prospects in the said election, and thereby Mr. Bhupendrasinh Manubha Chudasama has indulged in corrupt practices as defined under Section 123(7) of Representation of the People Act, 1951.  

Main arguments

  • Arguments of the Petitioner

The petitioner contended that after the counting of the votes he received two Final Result Sheets from the returning officer. The first one showed that the Returning Officer received a total of 927 postal ballots wherein none of the postal ballots were rejected by him for the purpose of counting. However, the second Final Result Sheets that was received by the petitioner from the Returning Officer showed a total of 1356 postal ballots out of which 429 postal ballots were rejected by the Returning Officer at the time of counting of votes. On the basis of these grounds the petitioner contended that – there is manipulation of election record, because there cannot be two Final Result Sheets, depicting two different figures of votes received through postal ballots. It was further pleaded that, the process of counting of votes was illegal and against the instructions of the Election Commission of India and the difference of 429 postal ballots is more than the victory margin of 327 votes, which has materially affected the result of this election.

The petitioner further contended the recounting of votes was asked by and on behalf on him but the Returning Officer did not abide to such a request. Further as per the instructions of the Election Commission of India, though a CD containing the record of complete videography of counting process should have been given by the Returning Officer to all candidates or their election agents free of cost after the counting process is over, the same was not given to the petitioner or his election agent by the Returning Officer, inspite of that being asked for.

It was finally contended that the Respondent No. 2 i.e. Mr. Bhupendrasinh Manubha Chudasama and Respondent No. 13 i.e. Mr. Dhaval Jani, the Returning Officer were involved in the commission of corrupt practices. The petitioner brought to the notice of the court that Respondent No. 2 got Mr. Dhaval Jani posted as Deputy Collector at Dholka, by transferring one officer who was already working there, after the code of conduct came in force. The returning officer was under the influence of Respondent No. 2 and that is why the returning officer manipulated the entire counting process to ensure that Respondent No. 2 gets elected by hook or by crook.

On the basis of all these contentions the petitioner prayed that the election of Mr. Bhupendrasinh Manubha Chudasama be declared as void, and the petitioner shall be declared as elected in his place.

  • Arguments of the Respondent (No.2)

Mr. Bhupendrasinh Manubha Chudasama contended that he was not present at the counting center, on the date of counting of votes and therefore, he could not have any personal knowledge regarding what had happened or was going on that day, within the counting hall. He further contended by referring to the written statement of the returning officer Mr. Dhaval Jani, that nothing wrong had happened at any stage of the election in question, not even in the counting hall, on the date of counting of votes. Mr. Bhupendrasinh Manubha Chudasama denied the allegations in relation to the alleged corrupt practice involved during the election process.

Salient features of the judgment

The case that was heard over 73 hearing and the last hearing being heard on 10th February was decided on 12th May. The features or finding of the judgments are mentioned herein below: – 

  • The court upheld the fact that 429 postal ballot papers were illegally rejected / excluded from consideration by the Returning Officer at the time of counting of votes for this election. It is further held that, the result of the election, in so far as it concerns the returned candidate from 58-Dholka Constituency, has been materially affected by the said illegal rejection of the votes.
  • Also the court upheld that, the procedure adopted for counting of votes in the election in question was against the orders of the Election Commission of India and was illegal. Therefore, due to such illegalities the result of the said election has been materially affected.
  • As the consequence to the above two points the court declared that, the election of the returned candidate (Mr. Bhupendrasinh Manubha Chudasama) from 58-Dholka Constituency, is void under Section 100(1)(d)(iii) and Section 100(1)(d)(iv) respectively of the Representation of the People Act, 1951.
  • The court also held that ‘corrupt practice’ as defined under Section 123(7) of the Representation of the People Act, 1951 was committed during the said election. It is proven that, Mr. Bhupendrasinh Manubha Chudasama and his election agent have not only attempted but have successfully obtained and procured assistance from the concerned Returning Officer for the furtherance of the prospects of Mr. Bhupendrasinh Manubha Chudasama in the election in question, and further that, for that purpose Mr. Chudasama and the concerned Returning Officer Mr. Dhaval Jani were hands-in-glove in the election in question.
  • Therefore, as a consequence to this, the court declare the election of Mr. Chudasama void under Section 100(1)(b) of the Representation of the People Act, 1951.
  • Lastly the prayer of the petitioner Mr. Ashwinbhai Kamsubhai Rathod that he shall be declared as duly elected candidate from 58-Dholka Constituency for the Gujarat Assembly Elections held on 14.12.2017 in place of Mr. Chudasama the respondent No.2, was rejected by this court.

Critical analysis

This case brought forth the bitter truth of how the ones in power can manipulate the system as per their own whims and fancies. What’s more deplorable is the fact that this event occurred in a country which is known to be world’s largest democracy; this event occurred in a country which is supposed to have one of the most rigid election processes. Despite all these facts the political leaders often find their ways through these rigid walls by way of corruption and their undue influence.

Further this case has not only made the mockery out of the Election Commission of India but has also ensued the everlasting debate of whether the judicial process of our country is nothing but a means to delay justice. In the present scenario as well Mr. Chudasama has filed an appeal in the Supreme Court and the Supreme Court has ordered stay upon the judgment of High Court. What this means is that Mr. Chudasama will continue to be a member of the Legislative Assembly in Gujarat. 

Conclusion

This is a rare incident in which any incumbent law minister’s election was termed void by the High Court in the state and probably in the country. However, such judgments are necessary to ensure that the sanctity of our nation is intact and is not destroyed by the ones in power. Further the Supreme Court should keep in view that Mr. Chudasama has already enjoyed more than half of the total tenure i.e. in total he has enjoyed 30 months in power out of the total 60 and if the Supreme Court takes long to reach a verdict then it would defeat the whole purpose of undoing the unjust and wrong because then Mr. Chudasama would have enjoyed the majority of tenure and that too through corrupt means!

Author: Akash Kumar Singh from ILS LAW COLLEGE, Pune

Editor: Dhawal Srivastava from Rajiv Gandhi National University of Law, Patiala.

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