Today(16th Sept), The Himachal Pradesh High Court has dismissed BJP MP Harsh Mahajan’s objections to Congress leader Abhishek Manu Singhvi’s petition challenging Mahajan’s Rajya Sabha election. Singhvi, who later secured a seat from Telangana, contends that the election process was flawed after both candidates received equal votes and a draw of lots was used to decide the winner.
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SHIMLA: Today(16th Sept), The Himachal Pradesh High Court has dismissed the objections raised by BJP Member of Parliament (MP) Harsh Mahajan regarding the maintainability of a petition filed by Congress leader and Senior Advocate Abhishek Manu Singhvi. Singhvi’s petition challenges Mahajan’s election to the Rajya Sabha, which occurred earlier this year under controversial circumstances.
Abhishek Manu Singhvi, who later secured a Rajya Sabha seat from Telangana, had contested the Rajya Sabha election from Himachal Pradesh in February 2023. During this election, both Singhvi and Harsh Mahajan secured 34 votes each. However, six members of the Himachal Pradesh Legislative Assembly, who were then affiliated with the Congress party, cross-voted in favor of Mahajan, the BJP candidate. Following this, the Returning Officer conducted a draw of lots, which resulted in Mahajan’s declaration as the winner.
Singhvi immediately contested the election result, raising questions about the procedure employed by the Returning Officer. He argued that the process of drawing lots to resolve the tie was not in accordance with the provisions of the Representation of the People (R.P.) Act, 1951.
Harsh Mahajan, in response, filed an application seeking the dismissal of Singhvi’s petition on the grounds that Singhvi had consented to the procedure adopted for the draw of lots. Mahajan’s argument centered on the notion that Singhvi had agreed to the process and had accepted the election result after the draw of lots.
However, the Himachal Pradesh High Court, presided over by Justice Jyotsna Rewal Dua, rejected Mahajan’s objections. The court held that Singhvi’s challenge was not based on his consent to the procedure but rather on the application of specific provisions of the law.
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The Court stated-
“The petitioner’s case in the election petition is fundamentally different. The petitioner argues that other provisions of the R.P. Act 1951 should have been used instead of the rules that were applied.”
Singhvi’s petition specifically questions the Returning Officer’s decision to invoke Rule 75(4) and Rule 81(3) of the Conduct of Election Rules, 1961. According to these rules, in case of an equality of votes between two candidates, the Returning Officer can resolve the matter by drawing lots. Rule 81(3) reads:
“The returning officer will use a draw to determine which candidate will be excluded, and then declare the remaining candidate as elected.”
However, Singhvi argued that this procedure was incorrectly applied. Instead, Section 65 of the Representation of the People Act, 1951 should have been invoked.
The provision under Section 65 states:
“If, after counting the votes, there is a tie between candidates and adding one vote would make any candidate elected, the returning officer must immediately decide the winner by drawing lots, treating the selected candidate as if they had received an additional vote.”
The key distinction, according to Singhvi, lies in the application of the rules versus the provisions of the Act, which he contends should have governed the situation.
The Court further elaborated on whether Singhvi’s participation in the vote-counting process and signing off on related documents would amount to his consent to the procedure. It concluded that this was a matter that would need to be examined in greater detail at a later stage.
“The petition included all relevant material facts, both positive and negative, that the petitioner relies on. The ‘consent’ claimed by the respondent is not a fact the petitioner relies on but is an assertion made by the respondent. Therefore, the petition cannot be rejected for failing to disclose material facts.”
– the court ruled.
The Court also assessed whether Singhvi had a valid cause of action to challenge Mahajan’s election. It ruled that the issue of whether there was non-compliance with the provisions of the R.P. Act, 1951, and whether the application of Rule 75(4) and Rule 81(3) was appropriate, would need to be examined.
“If the petitioner’s claim—that the Returning Officer’s application of Rule 75(4) and Rule 81(3) of the Conduct of Election Rules, 1961 was flawed and did not comply with the R.P. Act 1951—is proven to be valid, it could significantly impact the election result.”
-the Court stated.
Legal Representation
- On behalf of Singhvi, senior advocates P Chidambaram and Prashanto Chandra Sen argued the case, supported by Senior Advocate Neeraj Gupta and advocates Ajeet Pal Jaswal, Aman Panwar, Mudit Gupta, Vedant Ranta, and Yash Johivi.
- Harsh Mahajan was represented by Senior Advocate Maninder Singh, along with advocates Vikrant Thakur, Virbahadur Verma, Prabhas Bajaj, Ramgasaran Mohan, Shriyek Sarda, Shubham Guleria, and Ankit Dhiman.
