In a rare decision, the Gujarat High Court on 12 May nullified the election of Gujarat Minister of State Bhupendrasinh Manubha Chudasama during the 2017 state elections, based on a petition filed by his Congress rival for the Dholka constituency.
While Justice Paresh Upadhyay of the high court found that Chudasama’s election was void on three grounds under the Representation of the People Act – including commission of a ‘corrupt practice’ – he did not accept the runner-up Congress candidate’s plea to be installed as MLA, which means a bypoll will be needed for the constituency.
Chudasama has now filed an appeal in the Supreme Court against the decision of the high court. Here’s what he’ll need to argue against.
A Matter of 327 Votes
On 14 December 2017, Gujarat went to the polls for its Assembly elections. The votes were counted on 18 December 2017, and the results declared on the same day, with the Bharatiya Janata Party winning the race to form the government in the state.
In the 58-Dholka constituency, BJP candidate Chudasama was declared the winner by a margin of 327 votes.
The man who Chudasama defeated, Congress candidate Ashwinbhai Kamsubhai Rathod, filed an election petition in the Gujarat High Court, in which he claimed that 429 postal ballot papers were illegally rejected/excluded from consideration by the local Returning Officer, Dhaval Jani – at the behest of Chudasama, who was revenue minister at the time.
Rathod alleged that the election record was systematically manipulated to conceal the exclusion of these votes, and that the Returning Officer defied all the procedures and instructions of the Election Commission when it came to counting votes, preparation of the election record, and announcement of the results.
What Was Claimed in the High Court?
The 429 vote discrepancy came from the Final Result Sheet Form 20, which has to be provided by Returning Officers to the candidates who stand for an election. Rathod was initially provided an unsigned form on 18 December 2017, which said 927 postal votes had been received, of which none had been rejected.
The Returning Officer later provided him with a signed form, which said 1,356 postal ballots – which are received prior to the election/result date, it should be remembered – had actually been received, of which 429 were rejected.
As the margin of Chudasama’s victory was lower than this number, Rathod argued that the exclusion of the 429 votes materially affected the election result.
Rathod made a number of claims about the conduct of the Returning Officer, which showed he was “hand in glove” with Chudasama, thereby amounting to ‘corrupt practices’.
These included a claim that the Returning Officer had not provided him or his election agent a complete video recording of the counting process, as required by the Election Commission.
This was important as Rathod alleged that Chudasama’s Additional Private Secretary was present in the counting hall at the time of counting votes, which amounted to booth capturing and was against the Election Commission’s instructions.
He also claimed that Chudasama had got Jani posted as Deputy Collector at Dholka by transferring the earlier Deputy Collector even after the Model Code of Conduct had come into force – this was the alleged quid pro quo for his services, further compounded by a promotion that was reportedly in the pipeline for Jani at the time of the election.
'An Unholy Nexus’: The High Court’s Findings
The Gujarat High Court considered a great deal of evidence, including the statements of Rathod and Chudasama, the Returning Officer, the Observer, and the Election Commission, before arriving at its findings.
The Observer also informed the court that the Returning Officer had originally said there were 927 postal votes, and none had been rejected – this was the information she signed off on to allow the result of the election to be declared. This was also what was communicated to all the candidates for the constituency.
As a result, the court found that the failure to mention the 429 rejected postal votes was a manipulation of the election record.
The court also found that counting of the last two rounds of EVM votes was conducted before the counting of the postal votes – in violation of the instructions of the Election Commission. Several other rules for counting of votes were also ignored, which in itself would be enough to declare the election void.
However, the court found that it went beyond that, and that looked at together, all the errors and discrepancies showed that these were not bona fide mistakes, but constituted corrupt practices.
Corrupt practices are defined in Section 123(7) of the Representation of the People Act 1951, and include procuring the assistance of government officers by a candidate to help in their election.
Essentially, it came down to how the Returning Officer waited to see what the margins were from the EVM count, before starting the count of the postal ballots.
The EC requires postal ballots to be counted before the final two rounds of EVM counting, precisely to avoid a situation where the postal ballot count can then be ‘modified’ to benefit one candidate over the other.
The 429 ‘rejected’ postal votes were concealed from all, even the Observer, as counting them ran the risk of seeing Chudasama’s lead overturned. Thus, the permission to declare the result on 18 December 2017, obtained from the Observer, had been obtained in a “fraudulent manner”.
The Returning Officer then falsified further records to cover up the fiasco. Jani was unable to provide any rebuttals to all of this.
Adding to this was a shocking incident – when asked to play the complete recording in court from the counting hall, the Returning Officer provided a “mischievously incomplete” recording, which left out the moment when the total postal ballots received was recorded.
The court also found from CCTV footage that the allegation by Rathod, that Chudasama’s Additional Private Secretary was illegally allowed to be enter the counting hall, was true.
To top it all off, the court found that during the proceedings as well, when the court was considering whether to check the 429 ‘rejected’ postal ballots, not only Chudasama but the Returning Officer also objected to this.
While the MLA’s objection was understandable, there was no reason for Jani to do so, prompting the court to conclude:
“This shows that the Returning Officer was doing everything for the furtherance of the prospects of the respondent No 2 even before this Court in the trial. This is no less than an unholy nexus of the Returning Officer and the respondent No 2, which further fortifies the findings of this Court qua corrupt practice.”
The court also took note that following the election, the Election Commission actually initiated disciplinary action against the Returning Officer in March 2019 for breach of its instructions.
However, not only have these proceedings been entirely stalled, he was actually promoted by the Gujarat government in October 2019.
Using the rules of circumstantial evidence, the court found that this indicated that Chudasama had procured the Returning Officer’s assistance to “salvage the election”, and so found that he had committed a corrupt practice.
The judges could not accept Rathod’s request for him to be declared the winning candidate, because, by defying the Election Commission’s instructions, the Returning Officer had tainted the whole vote counting process, which had to be declared void. As a result, even Rathod’s votes couldn’t be counted as valid.
Chudasama’s Appeal to Supreme Court
If an MLA’s election is overturned for the commission of corrupt practices, this does not automatically lead to disqualification from standing for future elections. The President will need to decide within three months, after taking the opinion of the Election Commission, whether Chudasama should be disqualified, and if so, for how long.
The EC has formed a committee to examine the judgment.
In the meantime, however, Chudasama has sought to appeal to the Supreme Court against the Gujarat High Court’s decision. The high court has already certified that the case does not involve any issues of constitutional importance, and has refused to stay the order till such time as he files his appeal.
As a result, he will need to demonstrate that the court has applied the law incorrectly to the facts at hand.
While the judgment against him seems rock solid, the fact that the evidence tying him to a corrupt practice was circumstantial, provides him with the best line of attack.
Having said that, he had the opportunity for rebutting this evidence during the case before the high court, and failed to do so, which means that technically, he will not be able to raise any new arguments as such in the apex court.
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