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Despite Bharatiya Janata party (BJP) being the (principal) opposition party in Himachal Pradesh Legislative Assembly with merely 25 seats in the House with total strength of 68 vis-a-vis the ruling Congress whose tally is 40 while three other being Independent MLAs, the candidate fielded by the saffron party, Harsh Mahajan, in the Biennial Election for one seat of Rajya Sabha (Council of States) from the State got elected with 34 votes courtesy cross-voting by half a dozen Cong party legislators  along with votes of all three Independents. The Cong candidate, Dr. Abhishek Manu Singhvi, who too got 34 votes i.e. equal to BJP’s Mahajan but the former lost the battle in the  (draw of) lot which is the mechanism being employed  by the Returning Officer (R.O.) in case of tie of votes. 

Nevertheless luck favoured BJP’s nominee Mahajan in tie-breaker i.e. draw of lot  but the interesting yet significant legal point is that even he has not been able to attain quota sufficient for election which in the case at hand was 35. 

Rule #75 of Conduct of Election Rules, 1961 which pertains to counting of votes where only one seat is to be filled, says that in case of 68 member Himachal Pradesh Legislative Assembly, when all 68 MLAs voted in Rajya Sabha Biennial Election for one seat and all such votes were valid, then as per ibid Rule, the quota sufficient to get elected was 35 i.e one more than  34-34 votes as got by both BJP and Cong nominees.

If non-attainment of quota sufficient to get elected i.e. 35 would have any impact over the election of BJP’s Harsh Mahajan, who with 34 votes i.e. equal with that of Cong’s Singhvi, however the former emerging victorious in the draw of lot, can’t be convincingly asserted at this moment that in case where only one Rajya Seat is to be filled and the two contesting candidates get equal votes although one less than quota sufficient for getting elected, then the  triumph of one nominee via draw of lot would be totally legally valid. Thus, the door of Judicial Review remains open as what has happened is indeed unprecedented.

At the same time also quoted Rule #81(3) of Conduct of Election Rules, 1961 which stipulates that when at the end of any count only one vacancy remains unfilled and there are only two continuing candidates and each of them has the same value of votes and no surplus remains capable of transfer, the returning officer shall decide by lot which of them shall be excluded and after excluding him in the manner aforesaid declare the other candidate to be elected.

About the author:
Hemant Kumar

Hemant Kumar Hemant Kumar is a practicing advocate in Punjab and Haryana High Court. He raises the public centric issues

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