RS poll case: EC order can't be challenged, Sibal tells Guj HC

Congress leader Ahmed Patel's lawyer Kapil Sibal today argued in the Gujarat High Court that the Election Commission's order invalidating two votes, which paved the way for Patel's victory in the 2017 Rajya Sabha polls, cannot be challenged by way of an election petition.
Sibal argued against the petition filed by Balwantsinh Rajput, the BJP candidate who had narrowly lost the Rajya Sabha election in August last year. In the petition, Rajput sought that the EC's August 8, 2017 order, invalidating two votes, be set aside.
Sibal said the EC cannot be made a party as per the provisions of the Representation of People's Act, 1951.

He said it will be "disastrous for democracy" if the poll watchdog is made a party to an election petition and is forced to be examined as a respondent.
"There is a process in which an EC order can be corrected, but it cannot be made a party. Our constitutional scheme does not allow the EC to be made a party to a dispute. A court cannot interfere after the election starts. An election itself can be declared void, but an EC order cannot be challenged," he told the court.
The lawyer representing the EC supported the stand.

The court of Justice Bela Trivedi will pass the order on the matter in the next hearing scheduled on March 20.

Sibal also sought dismissal of the petition on the ground that the election petition has not complied with the manners in which true copy has to be affirmed and attested.
Rajput's lawyer Nirupam Nanavati argued in favour of impleading the EC saying that if he does not make it a respondent, whose order has been challenged, then that will not be appropriate as the order affects the outcome of the election.
Rajput had lost the August 2017 Rajya Sabha election to Patel after the EC passed an order invalidating the votes of former Congress MLAs Raghavjee Patel and Bholabhai Gohel over flouting the rules for conduct of the poll.

The votes were invalidated by the EC after a complaint was lodged by Congress polling agent Shaktisinh Gohil, paving the way for Patel's victory.
In his plea, Rajput demanded that the EC's order be set aside as it was "patently illegal and void ab initio (from the very beginning)."
He contended that once the returning officer (RO) had exercised his discretion and accepted the two votes, the EC had no power or jurisdiction to hear any appeal against it.
Rajput has also claimed that two Congress MLAs, who voted for Patel, had also shown their ballots to people other than the party's polling agent and demanded that their votes should not be taken into account.

Rajput contended that if that is done, he would win the poll and Patel will stand defeated.