Kathmandu, July 23

Lawyers representing petitioners in the Bharatpur vote counting case argued before the Supreme Court today that the tearing of 90 ballot papers by CPN-Maoist Centre representatives did not amount to unauthorised capture of counting station and did not merit re-polling.

Advocate Tulasi Pandey and a CPN-UML candidate for Ward No 19 of Bharatpur Metropolis, Gunjaman BK, had filed a petition at the Supreme Court challenging the Election Commission’s decision to order re-polling in the ward after 90 ballot papers were allegedly torn by CPN-MC representatives on May 29.

Advocate Ishwari Prasad Bhattarai pleaded on behalf of petitioners that Section 50 of the Local Level Election Act defined unauthorised capture of vote counting station as outside intervention and use of force. He argued that in this case, the CPN-MC representatives who tore ballot papers were not outsiders and the security personnel deployed there immediately took the situation under control.

Bhattarai said election officials could resume counting in Bharatpur by keeping the torn ballot papers aside. He said CPN-MC representatives who tore ballot papers demanded re-polling and if the SC ruled in favour of re-polling then the SC verdict would benefit those who committed a crime, which would be against the principle of justice.

Almost a dozen lawyers pleaded on behalf of the petitioners when division bench of justices Om Prakash Mishra and Purushottam Bhandari began the hearing today.

Former attorney general Hari Phuyal argued that the Election Commission’s decision to order re-polling was wrong, as the 90 ballot papers that were torn would not affect poll result. Phuyal cited Section 64 of India’s Representation of People Act, according to which election authorities order re-polling only if torn or destroyed ballot papers could affect the result. He said the Indian judiciary had invoked this provision in some cases.

Advocate Khimlal Devkota argued that if there was a case for ordering re-polling then it should have been done by the returning officer as per Section 44 of Local Level Election Act and not the EC. He pointed out that counting of votes was solely under the control of chief returning officer and not the EC. Devkota further argued that the report submitted by government attorney Gita Prasad Timsina did not mention unauthorised capture of counting station and hence there was no question of ordering re-polling. Devkota added that the EC, in its written reply submitted to the Supreme Court,  had stated that re-polling had been ordered in three cases in the past but none of those cases were similar to  the Bharatpur incident.

Advocate Govinda Bandi argued that the tearing of ballot papers was against law but it was not an unauthorised capture of vote counting station.

Advocate Bijay Kant Mainali argued that the EC’s decision to order re-polling was illogical, as the number of ballot papers torn was minuscule.

Hearing will continue tomorrow and the defendants, including the Election Commission, will have a chance to rebut the arguments of the petitioners’ lawyers.