Congress candidate Ahmed Patel won the Rajya Sabha seat from Gujarat after securing 44 votes. Earlier, the Election Commission, after two separate rounds of meetings with BJP and Congress leaders, asked the returning officer (RO) of the Rajya Sabha poll in Gujarat to reject votes cast by two Congress MLAs who had shown their ballot papers to persons other than their authorised party agent.
Stating that a viewing of the video recording of votes cast by the two MLAs - Bholabbhai Gohil and Raghavjibhai Patel - confirmed that they had violated the voting procedure and secrecy of ballot papers cast by them, EC asked the RO to reject the two votes by segregating the ballot papers, each of which carry a serial number, at the time of counting. The Election Commission held that the rule is very clear that the elector has to show his ballot paper only to the authorised representative of his party and no one else.
Countering BJP's argument that the decision of the returning officer, who had earlier declined the plea of Congress party candidate Shaileshbhai Parmar seeking rejection of the two votes, was final and that EC had no locus standi once the ballots were inserted in the ballot box, the poll panel cited the Supreme Court order in Mohinder Singh Gill Vs Chief Election Commissioner and Others case that upheld its sweeping powers under Article 324 regarding superintendence of elections. Stating that Rule 39A and 39AA were silent on what the returning officer should do if the ballot papers were not taken back before being inserted into the ballot box, EC said it was competent to issue appropriate directions to the returning officer.
The EC's decision to ask the RO to invalidate the votes came after high drama that saw BJP and Congress rushing to Nirvachan Sadan to present their arguments and counter-arguments. Congress was the first to approach the poll body, with its leaders R S Surjewala and R P N Singh claiming that as per Section 39AA, the presiding officer must allow the voter to show his ballot paper to the authorised party agent and no one else.
The BJP rushed to the EC soon after, submitting that since the ballots had already been inserted in the ballot box, the votes from the two MLAs could not be invalidated. It further argued that the RO's decision was final and even EC could not intervene once the ballots were inside the ballot boxes.
The Congress once again reached the EC's door around 7.20 pm. This delegation was a larger one with seven members, including P Chidambaram, Ghulam Nabi Azad and Anand Sharma. Chidambaram told reporters after the meeting, "The law is very clear. If the ballot is seen by a person other than the authorised person, then it is liable to be rejected. BJP was beneficiary of this law on June 11, 2016".
BJP sent its delegation to the EC a second time around 8.20 pm. Union power minister Piyush Goyal argued: "If neither they nor election observers objected to it when votes were cast, then their validity cannot be questioned now". Both Congress and BJP attempted to call on the EC a third time, but were not entertained.
Senior Congrress leader Shaktisinh Gohil said, “They had voted for the BJP. After showing their ballot to me, they also flashed their ballot to the side where Amit Shah (BJP national president and the party candidate) was sitting, and there is a video of this. Presiding Officer DM Patel is under pressure. We will ask for an official copy of the video and will even move Supreme Court if we find that the video is tampered with.”
State BJP president Jitu Vaghani strongly reacted to the Congress, saying such demand reflects the party's frustration given it knows that a defeat is imminent. “Congress' internal scuffle has come to the fore, and such a demand shows their frustration. They are opposing counting of votes because they are set to lose. Such an objection is only because of their frustration. Talking about video after the vote is cast makes no sense. However, the returning officer has the power to take the decision. We have written to the returning officer to take a decision on his own. They should not blame the BJP. Lack of trust on election officer is not right,” he said. Congress RS nominee Ahmed Patel is currently tightly placed as he needs 44 votes to win. His immediate opponent Balwantsinh Rajput was the Congress' chief whip in the Assembly, before he joined the BJP.
