The Hon’ble Gujarat High Court has on May 12, 2020, declared the election of Gujarat's Law Minister, Bhupendrasinh Manubha Chudasama to the State's Legislative Assembly held in December 2017 as violative of certain provisions of the Representation of People's Act, 1951 in the election petition filed by Ashwinbhai Kamsubhai Rathod. (who had lost the election against Chudasama).
Besides holding Law portfolio, Chudasama who is lawyer by profession, is also in charge of Revenue, Education (Primary, Secondary and Adult), Higher and Technical Education and Parliamentary Affairs departments in the state. The judgement in the said matter was delivered by Justice Paresh Upadhyay.
Chudasama’s election was declared void under Section 100(1)(d)(iii), 100(1)(d)(iv) and 100(1)(b) of the Representation of the People Act, 1951. Provisions of the Section 100 evoked in the matter are produced hereunder:
Section 100: Grounds for declaring election to be void:
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion—
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non—compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
Background of the Case:
Petitioner Mr. Ashwinbhai Kamsubhai Rathod was an Indian National Congress Party candidate and Mr. Bhupendrasinh Manubha Chudasama (who is Respondent No. 2) was a Bharatiya Janta Party Candidate in the General Election to the Gujarat Legislative Assembly held in December 2017, for 58-Dholka Constituency.
Chudasama had won the election by the margin of 327 votes over the petitioner. The Petitioner had contended that as against the victory margin of 327 votes, 429 postal ballot papers were illegally rejected / excluded from consideration by the Returning Officer Dhaval Jani, had materially affected the result.
The petitioner had also contended that this was done by Chudasama, who was earlier the Revenue Minister, through the Returning Officer, for the furtherance of his wining prospects, and had committed a corrupt practice, as defined under Section 123(7) of Representation of the People Act, 1951.
Taking note of the number of illegalities in the procedure and in substance committed by the Returning Officer at the time of counting of votes, breach of the mandatory instructions of the Election Commission of India and manipulation / falsification of election record, the Court noted that,
“[i]t is proved that the procedure adopted for counting of votes for 58-Dholka Constituency was against the orders of the Election Commission of India and was illegal and further that the result of the election, in so far as it concerns the returned candidate (the respondent No.2) from 58-Dholka Constituency for the Gujarat Legislative Assembly Elections, held on 14.12.2017, has been materially affected by it.”
The Court also held that Chudasama and his election agent had not only attempted but had successfully obtained and procured assistance from the Returning Officer for the furtherance of the prospects of him winning the election. In multiple paragraphs, the Court wrote that not only Chudasama and the Returning Officer were hands in glove, but also recognised an arrangement of quid pro quo between them.
Last issue for the consideration before the Court was - “Whether the petitioner proves that he is entitled to be declared as duly elected candidate from ‘58-Dholka Constituency’ for the Gujarat State Assembly Elections held on 14.12.2017?”. Answering this in the negative, the Court held that,
“[t]his issue cannot be answered in affirmative and need not be examined further. Even otherwise, it would be the realm of assumptions to examine, had those illegalities not been committed by the Returning Officer at the time of counting of votes, where the petitioner would have stood in the election in question.”
Interestingly the day after the Gujarat High Court declared his election void, Chudasama has moved the Supreme Court in appeal under Section-116A of the Representation of the People Act, 1951 on May 13, 2020. Section 116A provides for appeal of election petition from the judgement of the High Court to the Supreme Court.