[Rajya Sabha Polls 2022] "No Notice, Ex-Parte Order": Shiv Sena MLA Suhas Kande Moves Bombay High Court Against Invalidation Of Vote By ECI

Kande states that there is no provision under which the ECI has Appellate Powers over orders of the Election Officer. Moreover that the ECI's order was passed ex-parte, without any notice to him.

The matter was mentioned before the bench of Justices S. Gangapurwala and DS Thakur and circulation was granted for Wednesday, June 15, 2022.

According to ECI's order, before casting his vote, Kande went without folding his ballot paper to his authorised representative - Shiv Sena's Sunil Prabhu. While showing him the vote, the ballot paper was also visible to representatives of other parties, sitting in adjacent cubicles. Therefore, it held that Kande had affected the secrecy of the ballot paper cast by him in violation of Rule 39A(2) (c) of the Conduct of Election Rules, 1961.

It directed the Election Officer/Returning Officer to keep out Kande's vote while counting.

ECI's action was based on a representation by 7 members of BJP after the Election Officer ruled that there was no violation of the rules when BJP MLA Yogesh Sagar raised the objection after Kande finished voting, the plea states.

"Therefore it is submitted in the absence of any authority or the jurisdiction to exercise Appellate Power, the order which has been passed by the Respondent No.1, 2 and 3, is without jurisdiction without authority of law and therefore it is void," the plea states.

The power of Superintendent does not permit the Respondent No.1 (ECI), 2 (Rajiv Kumar Chief Election Commissioner) and 3 (Anupchandra Pande Election Commissioner) herein to "push away" the Election Officer from his seat, "to take.. control...and decide adjudicate as an Appellate Authority, over the order which has been already passed by the Election Officer (Returning Officer)," the plea states.

Kande contends that ECI's powers under Article 324 of the Constitution of India, by which it has the right to exercise control over all elections, is "different" from exercising appellate jurisdiction.

Assuming that the ECI has appellate jurisdiction, the representation should have been made by MLA Yogesh Sagar who had initially filed the complaint and not BJP representatives who hadn't voted and weren't members of the legislative assembly, Kande said in his plea.

Kande has said that since Prabhu issued the whip on June 10, the CCTV footage would show he only informed his authorised representative regarding his vote and did not show his vote to anyone else. Moreover, to the best of his knowledge he had folded the ballot paper.

Lastly, Kande in the petition filed through Advocate Ajinkya Udane states that ECI's order be set aside and his vote must be counted.

In the interim, Kande seeks a direction against ECI from passing such orders using its appellate powers in any election hereafter.

Also, that all CCTV footage may be preserved till the petition is decided.