Govt asks EC for its officer’s report on Gujarat Rajya Sabha poll, panel deflects query

The election to three Rajya Sabha seats from Gujarat held on August 8 was dramatic with the Congress alleging that two of its legislators, Bhola Bhai Gohel and Raghavji Bhai Patel, had turned rebel by disclosing their choice to an unauthorised person, other than the party’s election agent.

Although the RO, in his report, had rejected the party’s claim, the EC invoked Article 324 of the Constitution to revoke his decision and declare the two votes invalid. Patel, eventually, beat BJP’s Rajput to win his fifth term in the Upper House — the result was confirmed on August 9 — after Union Minister Smriti Irani and BJP president Amit Shah won the other two seats.

On August 11, an additional secretary in the Legislative Department of the Law Ministry, wrote to the EC seeking a “copy of the report of the Returning Officer… regarding invalidation of votes of two MLAs, for the information of the Hon’bl MoS L&J” — the letter was accessed by The Indian Express under the RTI Act.

Minister of State for Law and Justice (MoS L&J) P P Chaudhary was part of the BJP delegation that met the three election commissioners on August 8 to request them to reject the Congress plea on the ground that the “RO is the statutory authority to conduct the polling, counting process and to decide the validity of a ballot paper” and the EC “has no power” to overrule him. Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and then Commerce Minister Nirmala Sitharaman were the other members of the delegation.

The EC, however, did not oblige the request made in the August 11 letter and wrote to the Secretary of Law Ministry the same week asking the government to approach the RO directly for his report. The poll panel, in its response, also informed the government that it has permitted the RO to provide a copy of his report to Rajput, the BJP candidate who lost to Patel.

Although the ministry’s request seems innocuous on the face of it, former Chief Election Commissioners (CECs) who spoke to The Indian Express deemed it “inappropriate”.

“The Commission is independent and the ultimate authority to conduct free and fair elections. The Constitution makers had decided that the EC will be insulated from the Executive. While one can understand if the losing candidate approached the Commission for (the RO’s) report, but it’s inappropriate for the government to ask for it. The government is not the affected party here. The Commission is not answerable to the Executive in such matters,” said a former CEC, who did not wish to identified.

He said that the Commission was right to direct the government to the RO.

The tone of the file noting made by an EC officer regarding the Law Ministry’s request for a copy of the RO’s report suggests the same. “Tell them that they can have a copy of it directly from the RO of the just concluded Biennial election to RS. There is hardly any need to approach ECI for this. Under Rule 93(2) anybody can get copy on payment of copying charges,” it states.

The Law Ministry did not respond to questions sent by The Indian Express seeking comment on Friday. Chaudhary’s office denied knowledge of a letter seeking the RO’s report from the EC and also said that the minister learnt of it only when The Indian Express contacted him for a comment.

“It is also informed that as per official records, Hon’ble MoS has not issued any direction for seeking any copy of the report… for his perusal. Further, it is informed that Hon’ble MoS was also not made aware of the issuance of any such letter dated August 11, 2017 and subsequent developments, if any,” Chaudhary’s office said in its response.

Though Chaudhary has denied seeking a copy of the RO’s report, the additional secretary’s letter states that the report was being sought for Chaudhary’s information.