Full Judgment Text
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PETITIONER:
SHRADHA DEVI
Vs.
RESPONDENT:
KRISHNA CHANDRA PANT & OTHERS
DATE OF JUDGMENT26/10/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SEN, A.P. (J)
CITATION:
1982 AIR 1569 1983 SCR (1) 681
1982 SCC (3) 389 1982 SCALE (2)964
CITATOR INFO :
F 1983 SC1311 (16)
R 1984 SC 382 (2)
ACT:
Representation of the People Act, 1951-Election
Petition-Elector’s duty-Nature of proof-Required for a
relief of scrutiny and recount on the allegation of miscount
in an election petition.
HEADNOTE:
The appellant was one of the 19 candidates for the 11
members to be elected at the biennial election for electing
members to Council of States from the constituency of
elected members of the Uttar Pradesh Legislative Assembly,
at the election held on 28th March, 1979.
The election was to be in accordance with the system of
proportional representation by means of single transferable
vote. In all 421 members exercised their franchise. Eleven
ballot papers were rejected by the returning officer as
invalid and the 1st Respondent was declared elected in the
14th count.
The appellant, thereupon, filed an election petition
under section 81 of the 1951 Act before the Lucknow Bench of
the Allahabad High Court for scrutiny and recount on the
allegation of miscount. The appellant alleged that (i) the
result of the election in so far as it concerns the returned
candidate (i.e.) 1st respondent-has been materially affected
by the improper rejection of valid votes by wrongly
declaring them invalid as well as by improper reception of
what otherwise would have been the invalid votes if the
Returning Officer had been consistent in his approach, and,
therefore, the election of the returned candidate not only
should be declared void but in his place by a proper
computation of votes, the petitioner should be declared
elected to the 11th vacancy, (ii) there had been an improper
rejection of the valid votes cast in her favour and that has
materially affected the result of the election; and (iii)
even though it was obligatory upon the Returning Officer to
show all the ballot papers which he rejected as invalid, to
the candidates and/or their counting agents, he only showed
four out of the eleven ballot papers held invalid by him and
did not show the rest of them. Even these four were wrongly
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rejected and cannot be said to be covered by Rule 73(2)(d)
of the Election Rules. The High Court dismissed the election
petition and hence the appeal by special leave.
The appellant contended that (i) where the election is
to be held in accordance with the system of proportional
representation by means of the single transferable vote, if
the first preference is properly and ascertainably cast any
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error in setting out the remaining preferences would not
enable the Returning Officer to reject the whole ballot
paper; and (ii) every unrequired mark, cutting, erasure
cannot tantamount to any indication which would enable the
voter to be identified but the writing or mark must be such
that the voter can be and not merely might be identified and
there is no such cutting mark or erasure within the meaning
of Rule 73(2)(d) of the Conduct of Election Rules; 1961.
Allowing the appeal, the Court
^
HELD: 1:1. When a petition is for relief of scrutiny
and recount on the allegation of miscount, the petitioner
has to offer prima facie proof of errors in counting and if
errors in counting are prima facie established, a recount
can be ordered. If the allegation is of improper rejection
of valid votes which is covered by the broad spectrum of
scrutiny and recount because of miscount, petitioner must
furnish prima facie proof of such error. If proof is
furnished of some errors in respect of some ballot papers,
scrutiny and recount cannot be limited to those ballot
papers only. If the recount is limited to those ballot
papers in respect of which there is a specific allegation of
error and the correlation is established, the approach would
work havoc in a Parliamentary constituency where more often
10,000 or more votes are rejected as invalid. [690 A-C]
1:2. Law does not require that while giving proof of
prima facie error in counting each head of error must be
tested by only sample examination of some of the ballot
papers which answer the error and then take into
consideration only those ballot papers and not others. This
is not the area of inquiry in a petition for relief of
recount on the ground of miscount. True it is that ’a
recount is not granted as of right, but on evidence of good
grounds for believing that there has been a mistake on the
part of Returning Officer. Prima facie proof of error
complained of must be given by the election petitioner and
it must further be shown that the errors are of such
magnitude that the result of the election so far as it
affects the returned candidate is materially affected, then
recount is directed. [690 C-E]
1:3. It is not the requirement of law that in respect
of each ballot paper rejected as invalid a specific averment
must be so ma e as to identify the ballot paper and the only
those that can be correlated to the allegations in the
petition specifically and not generally shall be recounted.
That is contrary to the requirement of the Act and the
Rules. [691 B-C]
2:1. A combined reading of Rules 37A(1), 73(2)(a) and
73(2)(b) of the conduct of Election Rules 1961, makes clear
that when voting is in accordance with the proportional
representation by means of the single transferable vote it
is obligatory to cast the first preference vote for ensuring
the validity of the ballot paper and the first preference
vote must be so cast as not to leave any one in doubt about
it. The remaining preferences are optional with the elector.
He may or may not exercise his franchise for the remaining
preferences. Rule 73(2) is exhaustive of the grounds on
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which a ballot paper at a voting at election by Assembly
members shall be rejected as invalid and on a true and in
depth reading of it, it does not transpire that the
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failure to cast the remaining preferences would invalidate
the ballot papers. This is so because under rule 37A(1)
every elector has only one vote at an election irrespective
of the number of seats to be filled. The vote is only one
and even if there is more than one seat to be filled in,
subsequent preferences may be indicated by the elector and
it is optional with him not to exercise preferences outside
his only one vote which he must cast by indicating
unambiguously his first preference. [695 D-G]
2:2. If there is only one vote at such an election and
the preferences are as many as there are seats
chronologically to be indicated and failure to exercise
preferences subsequent to first preference would not
invalidate the ballot paper, it must follow as a corollary
that if the elector has committed some error in exercising
his preferences lower down the ladder the whole of the
ballot paper cannot be rejected as invalid. Therefore, it
must follow that not only such a ballot paper has to be held
as valid ballot paper but its validity shall continue upto
the stage in preferences where an error or confusion
transpires which would not permit computation of subsequent
preferences below the level of error. To illustrate the
point if as in the present case the voter had option to
exercise 11 preferences and if he has exercised his
preferences 1 to 5 correctly and unambiguously and has
committed an error in exercising sixth preference and it
cannot be said with certainty for whom the sixth preferences
vote was cast, the ballot paper has to be held valid in
computation of votes upto and inclusive of the fifth
preference and rejected for the preferences down below as if
the elector has not exercised his further preferences which
was optional with him. The ballot paper can thus be
partially valid and this is the logical outcome of the
system of voting. [695 F-H, 696 A-C-E]
3:1. Free and fair election being the fountain source
of Parliamentary democracy attempt of the Returning Officer
and the Court should be not to chart the easy course of
rejecting ballot papers as invalid under the slightest
pretext but serious attempt should be made before rejecting
ballot papers as invalid to ascertain, if possible, whether
the elector has cast his vote with sufficient clarity
revealing his intendment. In this case, the Returning
Officer has charted an easy course unsupportable by evidence
and the High Court failed to exercise its jurisdiction of
scrutiny of all ballot papers once a serious error has been
pointed out in respect of two ballot papers out of a total
of 11 invalid ballot papers. [700 E-G]
3:2 Rule 73(2)(d), provides that a ballot paper shall
be invalid on which, there is any mark or writing by which
the elector can be identified. Section 94 of the
Representation of People Act, 1951 ensures secrecy of ballot
and it cannot be infringed because no witness or other
person shall be required to state for whom he has voted at
an election. To ensure free and fair election which is
pivotal for setting up a parliamentary democracy, this vital
principle was enacted in s. 94 to ensure that a voter would
be able to vote uninhibited by any fear or any undesirable
consequence of disclosure of how he voted. As a corollary it
is provided that if there is any mark or writing on the
ballot paper which enables the elector to be identified the
ballot paper would be
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rejected as invalid. But the mark or writing must be such as
would unerringly lead to the identity of the voter. Any mark
or writing of an innocuous nature or meaningless import
cannot be raised to the level of such suggestive mark or
writing as to reveal the identity of the voter. There must
be some causal connection between the mark and the identity
of the voter that looking at one the other becomes revealed.
Therefore the mark or a writing itself must reasonably give
indication of the voter’s identity. It may be that there may
be extrinsic evidence from which it can be inferred that the
mark was placed by the voter by some arrangement. [697 F-H,
698 A-D]
Raghubir Singh Gill v. Gurcharan Singh Tohra & Others,
[1980] 3 S.C.R. 1302; followed.
Woodward v. Sarsons & Another, [1874-75] 10 L.R. (CP)
733, quoted with approval.
3:3. The words "can be identified" in Rule 73(2)(d)
cannot be interpreted to mean "might possibly be
identified". The mark or writing which would invalidate the
ballot paper must be such as to unerringly point in the
direction of identity of the voter. In the absence of
suggested mark or writing the ballot paper cannot be
rejected merely because there is some mark or writing on the
ground that by the mark or writing the voter may be
identified. [698 D-F]
Sohan Lal v. Abinash Chander & Others, [1953] 4
Election Law Reports, 55 approved.
3:4. In the instant case, (i) there was specific
averment in para 18 of the petition that the marks were not
such as to lead to identity of the elector and that the
ballot papers could not be rejected as invalid under rule
73(2)(d). This allegation is wholly substantiated by a
casual look at the remaining nine ballot papers. The error
is apparent; Once the error has been established the
scrutiny and recount had to be ordered as a prima facie case
of miscount is made out and, therefore, the decision of the
High Court is liable to be set aside, (ii) As the High Court
has not undertaken to examine the validity of each ballot
paper it would not be proper for the Supreme Court to
undertake the same for the first time here; (iii) the
position of law having been made very clear, namely, that
once an error is established it is not necessary that the
pleadings must show error in respect of each individual
invalid ballot paper, and a prima facie proof of error
resulting in miscount having been established a scrutiny and
recount has to be ordered. And the serutiny of invalid
ballot papers must precede the recount; and (iv) there is no
evidence of any prior arrangement between candidate and the
voter regarding identity and (v) the ballot papers could not
have been rejected on the ground mentioned in rule 73(2)(d),
such marks, being in this case, some erasures or a bracket.
[699 F-H; 700 A-A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 277 of
1980.
685
(From the Judgment and Order dated the 11th December,
1979 of the Allahabad High Court in Election Petition No. 2
of 1978.)
A.P.S. Chauhan, C.K. Ratnaparkhi and D.P.S. Chauhan for
the Appellant.
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A.N. Sen and C.P. Lal for Respondent No. 1.
S.S. Khanduja for RR. 4 & 5.
Miss Kamlesh Bansal for Respondent No. 16.
The Judgment of the Court was delivered by
DESAI, J. An unsuccessful candidate for election to
council of States (Rajya Sabha) at the election held on
March 28, 1979, is the appellant. At the biennial election
for electing members to Council of States from the
constituency of elected members of the Uttar Pradesh
Legislative Assembly, 19 candidates including the appellant
and the 1st respondent were duly nominated as candidates. 11
members were to be elected. Election was to be held as
mandated by clause (4) of Article 80 of the Constitution in
accordance with the system of proportional representation by
means of the single transferable vote. After the poll was
closed according to the time prescribed by the Election
Commission under s. 56 of the Representation of the People
Act, 1951 (’1951 Act’ for short), the Returning Officer, PW.
4 Satya Priya Singh commenced counting of votes. As the
election was to be in accordance with the system of
proportional representation by means of the single
transferable vote, the Returning Officer as required by rule
76 of the Conduct of Election Rules, 1961 (’Rules’ for
short), proceeded to ascertain the quota. In all 421 members
exercised the franchise. Eleven ballot papers were rejected
by the Returning Officer as invalid. Accordingly the quota
was worked out at the value of 3417. Respondents 2 to 11
were declared elected as each of them secured the value of
ballot papers greater than the quota in the course of
counting. As the counting proceeded further, the contest was
between the election petitioner (appellant) and the 1st
respondent and the 1st respondent was declared elected in
the 14th count. Once all the 11 vacancies were filled in,
counting was closed.
Petitioner filed an election petition under s. 81 of
the 1951 Act in the High Court of Judicature (Lucknow
Bench), Lucknow. The
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petition was for scrutiny and recount on the allegation of
miscount and directed against the 1st respondent because he
was declared elected to the last vacancy.
Petitioner alleged that the result of the election in
so far as it concerns the returned candidate - 1st
respondent has been materially affected by the improper
rejection of valid votes by wrongly declaring them invalid
as well as by improper reception of what otherwise would
have been the invalid votes if the Returning Officer had
been consistent in his approach and, therefore, the election
of the returned candidate not only should be declared void
but in his place by a proper computation of votes the
petitioner should be declared elected to the 11th vacancy.
The petition primarily being for relief of scrutiny and
recount on the allegation of miscount it was necessary to
allege and offer prima facie proof of the possible errors in
the counting which, if satisfactorily established, would
enable the court to direct a recount. It may be stated that
no prima facie proof has been offered of the improper
reception of an otherwise invalid vote in favour of the 1st
respondent and that allegation may be excluded from further
consideration. Petitioner alleged that there has been an
improper rejection of the valid votes cast in her favour and
that has materially affected the result of the election.
Petitioner states that even though it was obligatory upon
the Returning Officer to show all the ballot papers which he
rejected as invalid to the candidates and/or their counting
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agents, he only showed four out the eleven ballot papers
held invalid by him and did not show the rest of them. To
the question as to why votes were rejected as invalid it is
alleged that the Returning Officer informed the counting
agents that there were marks and cuttings in the ballot
papers which may possibly identify the voters and,
therefore, such ballot papers have been rejected on the
ground set out in rule 73 (2) (d) of the Rules. Four
specific allegations of error, improper rejection of votes
otherwise valid necessitating scrutiny and recount are set
out in paras 14, 15, 17 and 18 of the election petition. It
was also alleged that of the four ballot papers shown there
was one in which first preference was indicated in favour of
the petitioner but that was illegally rejected by the
Returning Officer on the ground that it contained an
overwriting in respect of the 10th preference vote marked by
the voter. The second error alleged in the petition is that
in one ballot paper the 4th preference figure was put in a
bracket and this was illegally rejected on the ground that
the voter can be identified. The
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third allegation is to the effect that the ballot paper
containing a 1st preference vote cast in favour of the
candidate Shri Surendra Mohan was illegally rejected by the
Returning Officer on the ground that the voter had given his
1st preference vote at two places whereas in fact the voter
had given his 1st preference vote only to Shri Surendra
Mohan and had given 11th preference vote to another
candidate which could be demonstrably established by
scrutiny of the ballot paper. The fourth error alleged to
have crept in the counting was that the Returning Officer
invalidated two other ballot papers on the ground that there
were overwritings in the 8th and 9th preference votes
respectively and that even though these ballot papers did
not contain any mark or writing by which the voters could be
identified, they were rejected as invalid contrary to the
relevant provision. It was urged that these prima facie
errors when substantiated would clearly make out a case of
miscount and the same can be corrected by scrutiny and
recount. The scrutiny and recount was sought to be confined
specifically to the decision of the Returning Officer
rejecting 11 votes as invalid. The contentions were
crystylised in the course of hearing of the appeal by urging
that where the election is to be held in accordance with the
system of proportional representation by means of the single
transferable vote, if the first preference is properly and
ascertainably cast any error in setting out the remaining
preferences would not enable the Returning Officer to reject
the whole ballot paper as invalid. The second specific
contention is that every unrequired mark, cutting, erasure
cannot tantamount to any indication which would enable the
voter to be identified but the writing or mark must be such
that the voter can be and not merely might be identified and
there is no such cutting, mark or erasure.
The 1st respondent contested the petition, inter alia,
contending that the quota was not 3417 as contended for on
behalf of the petitioner but it was 3217 and that
respondents 2 to 11 received more than quota hence they were
declared elected and that the contest continued between him
and the petitioner and in the 14th count the 1st respondent
was declared elected as the value of his ballot papers
exceeded the value of ballot papers of other continuing
candidates together with the surplus votes not transferred.
He specifically denied though he was not present at the
counting that all the ballot papers rejected at the counting
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were not shown to the counting agents and contended that no
error in counting is shown and that it is not open to the
court to direct recount
688
by first examining the ballot papers rejected as invalid.
Some technical contentions were taken by him with which we
are not concerned in this appeal.
A learned single Judge of the High Court to whom the
election petition was assigned framed as many as 11 issues
on which the parties were at variance. In the course of
hearing of the petition the petitioner moved an application
for a direction that an inspection of the 11 ballot papers
rejected as invalid by the Returning Officer may be given to
the petitioner. The Court directed inspection of four ballot
papers to be given as per order dated May 2, 1979. The 1st
respondent, the returned candidate questioned the
correctness of this order in this Court in special leave
petition filed by him. In the mean time all the disputed 11
ballot papers were summoned from the Returning Officer and
the Court directed the Joint Registrar to open the sealed
packet containing ballot papers and consistent with the
allegations in paras 14, 15, 17 and 18 of the petition, try
to correlate the ballot papers in respect of which the
allegation of improper rejection may prima facie appear to
be of substance and give inspection of those four ballot
papers to both the parties. The learned counsel appearing
for the petitioner was not inclined to take inspection in
this truncated manner and disclosed his desire to move this
Court against the order granting only inspection of four
ballot papers. The learned Judge by his order dated May 16,
1979, directed that the sealed packet containing the ballot
papers shall not be opened until further orders of the Court
and the same shall be kept in safe custody with the Joint
Registrar. It appears, thereafter the petitioner preferred
the special leave petition but ultimately the same appears
to have been withdrawn and sought direction of the Court for
compliance with the order for showing four ballot papers as
per the previous order. The Court accordingly directed that
the Joint Registrar shall open the sealed packet of the
rejected ballot papers and allow the returned candidate or
his counsel and the petitioner or her counsel to have visual
inspection of the ballot papers without allowing the parties
or their counsel to handle the ballot papers. Time and date
of the inspection was fixed by the Court. The Joint
Registrar opened the sealed envelope but found some
difficulty in complying with the order of the Court
directing giving of inspection of four ballot papers out of
11 rejected ballot papers because there was no specification
as to which four ballot papers were to be the subject-matter
of inspection. Ultimately he
689
took recourse to the averments in the petition, examined
each allegation, attempted to correlate it to the ballot
papers in his hand and found that only two ballot papers
could be correlated to the allegations made in the petition
and gave inspection of two ballot papers and kept other 9
ballot papers, of which he did not give inspection, in
sealed envelope. On this report of the Joint Registrar the
learned Judge called for the sealed envelope, opened up the
envelope in the presence of the learned counsel for the
parties to verify the correctness of the report of the Joint
Registrar and being satisfied that it was correct, he made
an order to that effect on December 5, 1979.
Thereafter the parties went to trial. Neither the
unsuccessful candidate, the petitioner, nor the 1st
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respondent, the returned candidate, stepped into the witness
box. On behalf of the petitioner PW. 1 Shri Shakir Ali
Siddiqi, PW. 2 Udit Narain Sharma, election agent of
candidate Shri Surendra Mohan, and PW. 3 Kalpnath Singh
election agent of the petitioner were examined. RW. 1
Habibul Rahman Nomani, counting agent of Smt. Manohara, RW.
2 Deo Bahadur Singh, election agent of the returned
candidate 1st respondent, RW. 3 Prabhat Kumar Misra,
observer deputed by the Election Commission and RW. 4 Satya
Priya Singh, Returning Officer were examined on behalf of
the returned candidate.
The learned Judge rejected the petition substantially
holding that the petitioner has failed to prove that all
eleven rejected ballot papers were not shown to the counting
agents. It was held that petitioner failed to prove such
error in counting which would enable her to seek relief of
scrutiny and recount. In reaching this conclusion, with
great respect, the learned judge has completely misdirected
himself as to the nature of proof required for a relief of
scrutiny and recount on the allegation of miscount. The
learned Judge first took up the allegations of errors in
counting, more particularly directed to the allegation of
improper rejection of valid votes which would materially
affect the result as set out in paras 14, 15, 17 and 18 of
the petition, and then through the help of the Joint
Registrar excluded the nine ballot papers without giving
inspection and only took into consideration two ballot
papers which answered the error as complained of and then
proceeded to hold that even if these two ballot papers
rejected as invalid are taken into account and the value of
the votes computed, the result would not be materially
affected and, therefore, rejected the election petition.
690
When a petition is for relief of scrutiny and recount
on the allegation of miscount, the petitioner has to offer
prima facie proof of errors in counting and if errors in
counting are prima facie established a recount can be
ordered. If the allegation is of improper rejection of valid
votes which is covered by the broad spectrum of scrutiny and
recount because of miscount, petitioner must furnish prima
facie proof of such error. If proof is furnished of some
errors in respect of some ballot papers, scrutiny and
recount cannot be limited to those ballot papers only. If
the recount is limited to those ballot papers in respect of
which there is specific allegation of error and the
correlation is established, the approach would work havoc in
a Parliamentary constituency where more often we find 10,000
or more votes being rejected as invalid. Law does not
require that while giving proof of prima facie error in
counting each head of error must be tested by only sample
examination of some of the ballot papers which answer the
error and then take into consideration only those ballot
papers and not others. This is not the area of inquiry in a
petition for relief of recount on the ground of miscount.
True it is that ’a recount is not granted as of right, but
on evidence of good grounds for believing that there has
been a mistake on the part of Returning Officer’ (See
Halsbury’s Laws of England, 4th Edn,, Vol. 15, para 940).
This Court has in terms held that prima facie proof of error
complained of must be given by the election petitioner and
it must further be shown that the errors are of such
magnitude that the result of the election so far as it
affects the returned candidate is materially affected, then
recount is directed. What was broadly alleged by the
petitioner in the election petition was that where election
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is held in accordance with the proportional representation
by the single transferable vote it would be illegal and
erroneous for the Returning Officer to reject as invalid a
ballot paper if after first preference vote is validly cast
some error is committed in indicating the remaining
preferences. Instances of error is committed in indicating
the remaining preferences. Instances of error set out in
paras 14, 15, 17 and 18 spelt out a ground that the ballot
papers which were rejected under rule 73 (2) (d) did not
contain or carry any mark or writing by which elector can be
identified and that there has been thus improper rejection
of a vote otherwise validly cast or which is partially
valid. Without allowing inspection of all the disputed
ballot papers the learned judge has accepted that at least
two ballot papers can be correlated to allegation in para 15
and 17 which would prove the allegations made in the
petition. The learned Judge,
691
however held that the rejection of these two ballot papers
was correct. A further observation is that even if the
rejection of these two ballot papers is held to be improper,
the result of the election so far as returned candidate is
concerned is not materially affected. And it would be
succinctly pointed out that allegation in para 18 in respect
of two other ballot papers is wholly substantiated. Even at
the cost of repetition it must be said that it is not the
requirement of law that in respect of each ballot paper
rejected as invalid a specific averment must be so made as
to identify the ballot paper and only those that can be
correlated to the allegations in the petition specifically
and not generally shall be recounted. That is contrary to
the requirement of the Act and the Rules.
The impermissible approach of the learned Judge
compelled us with the consent of learned counsel of the
parties to call for the 11 ballot papers rejected as
invalid. A direction to open sealed envelopes was given and
at the request of learned counsel for the parties Xerox copy
of each ballot paper was supplied to both the sides and the
appeal was further set down for hearing.
We now proceed to examine the contentions in this
petition. Let us first have a look at the relevant
constitutional and statutory provisions. Clause (4) of
Article 80 provides that the representatives of each State
in the Council of States shall be elected by the elected
members of the Legislative Assembly of the State in
accordance with the system of proportional representation by
means of the single transferable vote. The fasciculous of
Rules in Parts VI and VII of the Rules are relevant. Part VI
is headed ’Voting at Elections by Assembly Members and
Council Constituencies’. Rule 70 provides that the
provisions of rules 28 to 35 and 36 to 48 shall apply : (a)
to every election by assembly members in respect of which no
direction has been issued under clause (a) of rule 68,
subject to the modifications set out in the sub-rules of
Rule 70. The important modification of which we must take
notice is the introduction of rule 37A setting out the
method of voting at such election. It may be extracted :
"37A. Method of voting-(1) Every elector has only
one vote at an election irrespective of the number of
seats to be filled.
692
(2) An elector in giving his vote-
(a) shall place on his ballot paper the
figure 1 in the space opposite the name
of the candidate for whom he wishes to
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vote in the first instance, and
(b) may, in addition, place on his ballot
paper the figure 2, or, the figures 2
and 3, or the figures, 2, 3 and 4 and so
on in the space opposite the names of
the other candidates in the order of his
preference.
Explanation-The figures referred to in clauses (a)
and (b) of this sub-rule may be marked in the
international from of Indian numerals or in the Roman
form or in the form used in any Indian language but
shall not be indicated in words".
Part VII is headed ’Counting of votes at Elections by
Assembly Members or in Council Constituencies’. It defines
expressions such as ’continuing candidate’ ’count’,
’exhausted paper’ ’first preference’, original vote’,
surplus’ transferred vote’ and ’unexhaused paper. These are
technical terms each having bearing on the question of
counting of votes. ’First preference’ vote has been defined
to mean the figure 1 set opposite the a name of a candidate;
’second preference’ means the figure 2 set opposite the name
of a candidate: ’third preference’ means the figure 3 set
opposite the name of a candidate, and so on. ’Original vote’
is defined to mean in relation to any candidate, a vote
derived from a ballot paper on which a first preference is
recorded, for such candidate. Rule 73 provides for scrutiny
and opening of ballot boxes and packets of postal ballot
papers. Sub-rule (2) of rule 73 is material which may be
extracted:
"73. Scrutiny and opening of ballot boxes and packets
of postal ballot papers-
(2) A ballot paper shall be invalid on which-
(a) the figure 1 is not marked; or
693
(b) the figure 1 is set opposite the name of
more than one candidate or is so placed
as to render it doubtful to which
candidate it is intended to apply; or
(c) the figure 1 and some other figures are
set opposite the name of the same
candidate; or
(d) there is any mark or writing by which
the elector can be identified; or
(e) there is any figure marked otherwise
than with the article supplied for the
purpose :
Provided that this clause shall not apply to a
postal ballot paper.
Provided further that where the returning officer
is satisfied that any such defect as is mentioned in
this clause has been caused by any mistake or failure
on the part of a presiding officer or polling officer,
the ballot paper shall not be rejected, merely on the
ground of such defect.
Explanation-The figures referred to in clauses
(a), (b) and (c) of this sub-rule may be marked in the
international form of Indian numerals or in the Roman
form or in the form used in any Indian language, but
shall not be indicated in words."
The Returning Officer while counting votes at election
by Assembly members has to bear in mind the implication of
voting in accordance with the proportional representation by
means of the single transferable vote. What is obligatory in
this system of voting is that every elector must exercise
his first preference vote. Rule 37A (1) specifies that every
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elector has one vote only irrespective of the number of
seats to be filled in at such election. Rest are
preferences. In order to exercise franchise at such election
the elector is under a duty to give his 1st preference vote.
Where the 1st preference vote is not exercised the ballot
paper will have to be rejected as invalid as mandated by
rule 73 (2) (a) which provides that the ballot paper shall
be invalid on which figure 1 is not marked. By the combined
reading of rule 37A (2) (a)
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with rule 73 (2) (a) it unquestionably transpires that in
this system of voting as understood in contradistinction to
single member constituency where a cross has to be placed
against the name or the symbol of the candidate the first
preference vote is a sine qua non for validity of the ballot
paper. The provision contained in rule 37A (2) (b) read with
rule 73 (2) (a) and (b) would manifestly show that the
elector is not required to exercise all preference available
to him at the election. To illustrate, if as in the present
case there were 11 vacancies, the elector can go on
exercising his preferences up to 11th number by putting
figures 1 to 11 against the candidates whom the elector
wants to accord his preferences according to his own choice.
But while exercising the preferences it is obligatory in
order to render the ballot paper valid to give first
preference vote. It is optional for the elector to exercise
or not to exercise his remaining preferences. This must be
so in the very nature of things because this system of
voting was devised to provide minority representation. If
amongst 421 electors as in the present case a party has 220
members owing allegiance to the party and each one can
exercise 11 votes with the reservation that not more than
one vote can be given to one candidate and that a cross up
to the totality of number 11 can be placed against 11
different candidates, no one else having 201 votes in his
pocket can get elected. To avoid this monolithic political
pocket borough of votes this more advanced system of
proportional representation by means of the single
transferable vote was devised. The very expression
’proportional representation’ is onomatopoetic in the sense
it shows that various interests especially the minority
groups can secure representation by this more advanced
method of franchise. True, where there are single member
constituencies this system is not helpful. But where there
are multi member constituencies this system has a distinct
advantage and the advantage becomes discernible from the
fact that rule 37A (2) (a) provides that an elector in
giving his vote shall place on his ballot paper the figure 1
in the space opposite the name of the candidate for whom he
wishes to vote in the first instance. The expression ’shall’
demonstrates the mandate of the section and when compared
with sub-clause (b) which provides that an elector in giving
his vote may, in addition, place in his ballot paper the
figure 2 or the figures 2, 3, 4 etc which would bring in
sharp focuss the mandatory and the directory part in clauses
2 (a) and 2 (b). The underlying thrust of the section
becomes further manifest by referring to rule 73 (2) (a) and
(b) which provide that a ballot paper shall be invalid on
which the
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figure 1 is not marked or the figure 1 is set opposite the
name of more than one candidate or is so placed as to render
it doubtful to which it is intended to apply. Sub-clause (c)
of sub-rule (2) of rule 73 further brings out the intendment
of the provision because it mandates that the ballot paper
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shall be invalid on which the figure 1 and some other
figures 1 are set opposite the name of the same candidate.
It, therefore, necessarily, follows that when voting is in
accordance with the proportional representation by means of
the single transferable vote it is obligatory to cast the
first preference vote for ensuring the validity of the
ballot paper and the first preference vote must be so cast
as not to leave any one in doubt about it. The remaining
preferences are optional with the elector. He may or may not
exercise his franchise for the remaining preferences. If he
chooses not to exercise remaining preferences the ballot
paper cannot be rejected as invalid for failure to exercise
the remaining preferences. Rule 73 (2) is exhaustive of the
grounds on which a ballot paper at a voting at election by
Assembly members shall be rejected as invalid and on a true
and in depth reading of it, it does not transpire that the
failure to cast the remaining preferences would invalidate
the ballot paper. This conclusion is reinforced by the
provision contained in rule 37A (1) which provides that
every elector has only one vote at an election irrespective
of the number of seats to be filled. Therefore, the vote is
only one and even if there is more than one seat to be
filled in, subsequent preferences may be indicated by the
elector and it is optional with him not to exercise
preferences outside his only one vote which he must cast by
indicating unambiguously his first preference.
What then follows ? If there is only one vote at such
an election and the preference are as many as there are
seats chronologically to be indicated and failure to
exercise preferences subsequent to first preference would
not invalidate the ballot paper, it must follow as a
corollary that if the elector has committed some error in
exercising his preferences lower down the ladder the whole
of the ballot paper cannot be rejected as invalid. To
illustrate, if the elector has with sufficient clarity
exercised his preferences, say 1 to 5 in chronological order
but while exercising his sixth preference he having the
right to exercise the preference up to 11, has committed an
error, the error, in exercising his sixth preference would
not render the whole ballot paper invalid and his preference
up to
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5 will have to be taken into account while computing the
votes. We specifically invited learned counsel on both sides
to assist us in examining this aspect as we were treading on
an uncovered ground. In fact, we adjourned the matter to
enable Mr. Chauhan, learned counsel for the petitioner and
Mr. A.K. Sen, learned counsel for the respondent to study
the problem and at the resumed hearing it was not only not
disputed but unambiguously conceded that in view of the
provision contained in rule 37A read with rule 73 (2) once
the first preference vote has been clearly and unambiguously
exercised the ballot paper cannot be rejected on the ground
that lower down the ladder there was some error in
exercising the subsequent preferences. If this is the
correct interpretation of rule 37A, it must follow that not
only such a ballot paper has to be held as valid ballot
paper but its validity shall continue up to the stage in
preferences where an error or confusion transpires which
would not permit computation of subsequent preferences below
the level of error. To illustrate the point, if as in the
present case the voter had option to exercise 11 Preferences
and if he has exercised his preferences 1 to 5 correctly and
unambiguously and has committed an error in exercising sixth
preference and it cannot be said with certainty for whom the
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sixth preference vote was cast, the ballot paper has to be
held valid in computation of votes up to and inclusive of
the fifth preference and rejected for the preferences down
below as if the elector has not exercised his further
preferences which was optional with him. The ballot paper
can thus be partially valid. This is not a startling
proposition but is the logical outcome of the system of
voting. No authority is needed in support of it but one is
required it is to be found in the statement of law in
paragraph 636, page 345, Vol. 15 of the Halsbury’s Laws of
England, 4th Edn. It may be extracted :
"636. Ballot papers rejected in part-Where at a
local government election or poll consequent on a
parish or community meeting the voter is entitled to
vote for more than one candidate or at a poll
consequent on a parish or community meeting on more
than one question, a ballot paper is not to be deemed
to be void for uncertainty as respects any vote as to
which no uncertainty arises and that vote is to be
counted".
We have examined this aspect in depth because out of 11
invalid ballot papers which we have marked now in the Xerox
copies
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from ’A’ to ’K’ for identification, ballot paper marked ’B’
has been rejected under rule 73 (2) (b) by the Returning
Officer on the ground that figure 1 appears against two
candidates J.P. Singh and Surendra Mohan. The High Court has
accepted the rejection as valid. It is difficult to accept
this view of the Returning Officer affirmed by the High
Court because figure 1 has been clearly marked against the
candidate Surendra Mohan and the figure 11 is noted against
the candidate J.P. Singh. There is some overwriting in the
two strokes of 11 but it must be remembered that explanation
appended to rule 37A permits that the figures indicating
preferences may be marked in the international form of in
Indian numerals or in the Roman form or in the form used in
any Indian language but shall not be indicated in words. All
other figures indicating the preferences have been written
in Hindi numerals and 11 is by two strokes having the loop
at the top slightly overwritten but the preference is the
11th preference against J.P. Singh, is indisputable and is
clearly visible to the naked eye. Obviously this ballot
paper marked ’B’ could not have been rejected on the ground
mentioned in rule 73 (2) (b).
We may now turn to remaining nine ballot papers.
Remaining nine ballot papers have been rejected on the
ground that by some mark on the ballot paper itself the
voter can be identified. There is a specific allegation to
that effect in para 18 of the election petition. Before we
examine each individual ballot paper, let the full import of
the provision be made clear. Rule 73 (2) (d) provides that a
ballot paper shall be invalid on which there is any mark or
writing by which the elector can be identified. Section 94
of the 1951 Act ensures secrecy of ballot and it cannot be
infringed because no witness or other person shall be
required to state for whom he has voted at an election.
Section 94 was interpreted by this Court on Raghbir Singh
Gill v. Gurcharan Singh Tohra & Ors,(1) to confer a
privilege upon the voter not to be compelled to disclose how
and for whom he voted. To ensure free and fair election
which is pivotal for setting up a parliamentary democracy,
this vital principle was enacted in s. 94 to ensure that a
voter would be able to vote uninhibited by any fear or any
undesirable consequence of disclosure of how he voted. As a
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corollary it is provided that if there is any mark or
writing on the ballot paper which enables the elector
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to be identified the ballot paper would be rejected as
invalid. But the mark or writing must be such as would
unerringly lead to the identity of the voter. Any mark or
writing of an innocuous nature or meaningless import cannot
be raised to the level of such suggestive mark or writing as
to reveal the identity of the voter. In Wodward v. Sarsons &
Anr.,(1) interpreting an identical provision it was observed
as under :
"It is not every writing or every mark besides the
number on the back which is to make the paper void, but
only such a writing or mark as is one by which the
voter can be identified".
It would imply that there must be some causal connection
between the mark and the identity of the voter that looking
at one the other becomes revealed. Therefore, the mark or a
writing itself must reasonably give indication of the
voter’s identity. It may be that there must be extrinsic
evidence from which it can be inferred that the mark was
placed by the voter by some arrangement. In this context one
can advantageously refer to the statement of law in
Halsbury’s Laws of England.(2) It may be extracted :
"634. Ballot papers rejected for marks of
identification-Any ballot paper on which anything is
written or marked by which the voter can be identified,
except the printed number on the back, is void and must
not be counted. The writing or mark must be such that
the voter can be, and not merely might possibly be,
identified"
"As respects ballot papers which have names,
initials, figures or other possible marks of
identification on them by which it might be suggested
that the voter could be identified, it has been said
that the court should look at the paper and from its
own opinion whether what is there has been put there by
the voter for the purpose of indicating for whom he
votes; if the voter has not voted in the proper way (if
for example he has made two crosses, or some other such
marks which might have been intended
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for purposes of identification), but the Court comes to
the conclusion on looking at the paper that the real
thing that the voter has been doing is to try, badly or
mistakenly, to give his vote, and make it clear for
whom he voted, then these marks should not be
considered to be marks of identification unless there
is positive evidence of some agreement to show that it
was so".
In Woodward’s case the Court came to the conclusion that the
placing of two crosses or three crosses or a single stroke
in line of a cross or a straight line or a mark like
imperfect letter ’P’ in addition to the cross or star
instead of a cross or a cross blurred or marked with a
tremulous hand, or a cross placed on the left side of the
ballot paper, or a pencil line drawn through the name of the
candidate not voted for, or a ballot paper torn
longitudinally through the centre, are not marks which would
invalidate the votes on the ground that the mark was such
that the voter can be identified. Similarly, Election
Tribunal in Sohan Lal v. Abinash Chander & Ors.,(1) held
that addition of a horizontal line after figure 1 indicating
first preference vote would not invalidate the ballot paper,
unless there was evidence that the horizontal line was drawn
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so as to reveal the identity of the voter. In the absence of
any such evidence the ballot paper was held valid. It would,
therefore, follow that the mark or wriring which would
invalidate the ballot paper must be such as to unerringly
point in the direction of identity of the votor. In the
absence of such suggested mark or writing the ballot paper
cannot be rejected merely because there is some mark or
writing on the ground that by the mark or writing the voter
may be identified. One has to bear in mind the difference
between ’can be identified’ and ’might possibly be
identified’.
The High Court did not examine the other 9 ballot
papers on the erroneous view that only two were correlated
to the averments in the plaint. There was specific averment
in para 18 of the petition that the marks were not such as
to lead to identity of the elector and that the ballot
papers could not be rejected as invalid under rule 73 (2)
(d). This allegation is wholly substantiated by a casual
look at the remaining nine ballot papers. The error is
apparent. Once the error has been established the scrutiny
and
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recount had to be ordered as a prima facie case of miscount
is made out and, therefore, the decision of the High Court
is liable to be set aside. At one stage we were inclined to
examine the validity of each ballot paper. But as the High
Court has not undertaken that exercise it would not be
proper for us to undertake the same for the first time here.
The position of law having been made very clear, namely,
that once an error is established it is not necessary that
the pleadings must show error in respect of each individual
invalid ballot paper, and prima facie proof of error
resulting in miscount having been established, a scrutiny
and recount has to be ordered. And the scrutiny of invalid
ballot papers must precede the recount. It is further made
clear that where voting is in accordance with the
proportional representation by the single transferable vote
a ballot paper can be valid in part. And it must be
remembered that every mark or writing does not result in
invalidation of the vote The mark or identification should
be such as to unerringly reveal the identity of the voter
and the evidence of prior arrangement connecting the mark
must be made available. There is no such evidence.
Therefore, the ballot papers could not have been rejected on
the ground mentioned in rule 73 (2) (d), such marks being in
this case some erasures or a bracket.
Free and fair election being the fountain source of
Parliamentary democracy attempt of the Returning Officer and
the Court should be not to chart the easy course of
rejecting ballot papers as invalid under the slightest
pretext but serious attempt should be made before rejecting
ballot papers as invalid to ascertain, if possible, whether
the elector has cast his vote with sufficient clarity
revealing his intendment. In this case we are satisfied that
the Returning Officer has charted an easy course
unsupportable by evidence and the High Court failed to
exercise its jurisdiction of scrutiny of all ballot papers
once a serious error has been pointed out in respect of two
ballot papers out of a total of 11 invalid ballet papers.
Therefore, we find it difficult to accept the view taken by
the High Court. Accordingly, this appeal is allowed and the
judgment and order of the High Court are set aside and the
matter is remanded to the High Court for further proceeding
according to law. The High Court shall examine all invalid
ballot papers, ascertain the reasons for the rejection,
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satisfy itself whether the reason is valid or unconvincing,
and decide the validity of the ballot paper as a whole or in
part and direct computation of the votes over again. The
High Court may bear in mind that the decision of the
Returning
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Officer rejecting ballot papers as invalid is subject to
review of the High Court in a proper election petition (See
Halsbury’s Laws of England, para 638, page 345, Vol. 15, 4th
Edn.).
It would be open to the High Court to take assistance
of the Chief Electoral Officer or such other person well
versed in computing the votes in this complicated system of
counting as considered necessary to determine the final
outcome of recount.
As the matter has been delayed sufficiently, we hope
that the High Court would expeditiously dispose of the same.
The costs of the hearing in this Court would abide the final
outcome of the appeal.
S.R. Appeal allowed.
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