Poll panel’s order to disqualify two votes in Guj is extraordinary

Election Commission’s (EC) order disqualifying the votes of the two Congress rebel lawmakers is extraordinary in many ways.

It invoked the commission’s constitutional powers to overrule the returning officer, who had declared the votes valid, and by doing so it maintained neutrality of the commission. The Article 324 of the Constitution, the commission evoked last night, gives it unprecedented powers to conduct polls in a free and fair manner in situations that are not covered under the Representation of People’s Act.

The Supreme Court in the Kuldeep Nayar versus Union of India case said the Article 324 gives the commission reservoir of power in those “vacuous areas where either the law made by Parliament is silent or insufficient provision” to deal with conduct of the polls. The EC had to invoke its Constitutional powers as the law makes the returning officer a final authority in conduct of polls and there is no provision for the commission to overrule its representative on ground.

In Gujarat, the returning officer declared the two votes valid even though the secrecy of the vote was not maintained. In RS polls, a lawmaker can show his or her vote only to his party’s polling agent. Independents cannot display their vote.

A year ago, the Congress was at the receiving end because of this provision when its general secretary Randeep Surjewala’s vote in Haryana RS poll was declared invalid by the returning officer for showing it to party’s legislature party chief Kiran Choudhary. The EC did not interfere with the returning officer’s decision even though the Congress challenged it. Doing the same for Gujarat would have put the commission in an embarrassing position as the officer was in clear violation of the rules.

The BJP had been making this argument with the commission since last night. Finance minister Arun Jaitley and law minister Ravi Shankar Prasad told the commission that the EC does not have powers to overrule the returning officer and only a court can do it. That would have meant defeat of Ahmed Patel. Discounting two votes meant that Patel needed 44 votes to win, which he got. Had the two votes — that went to the BJP — been counted, Patel would have lost as he would have needed 45 votes to win.

But, the commission headed by Gujarat cadre AK Joti, decided to uphold the dignity of the election process and take an extraordinary step by invoking its powers under Article 324, which the constituent assembly said should be sparingly used. It once again proved the apolitical stature of the commission that strengthens our democratic ethos.