Rattan Anmol Singh & ANR Vs. Atma
Ram & Ors  INSC 71 (21 May 1954)
BOSE, VIVIAN MUKHERJEA, B.K.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 510 1955 SCR 481
CITATOR INFO :
F 1956 SC 140 (2) R 1959 SC 93 (15,16)
E&R 1960 SC1049 (16) R 1970 SC 110 (4) E 1973 SC 178 (9)
Representation of the People Act, 1951 (XLIII
of 1961), ss. 2 (1)(k), 33(1) and (2),36(2)(d) and (4)-Representation of the
People (Conduct of Elections and Election Petitions) Rules, 1951, r.
2(2)--Nomination paper-Subscribed by illiterate proposer and seconder
Containing thumb-mark instead of signatures-No attestation thereof Validity ofAttestation-Whether
a necessary formality-At what stage it must existWhether can be validated at
Under section 33(1) of the Representation of
the People Act, 1951, each nomination paper should be "subscribed" by
a proposer and a seconder. Where the proposer and the seconder of a nomination
paper (as in the present case) are illiterate and so place thumb-marks instead
of signatures and those thumb-marks are not attested, the nomination paper is
invalid as attestation in the prescribed manner in such a case is necessary
because of rule 2(2) of the Representation of the People (Conduct of Elections
and Election Petitions) Rules, 1951, which requires it.
Signing, whenever signature is necessary,
must be in strict accordance with the requirements of the Act and where the
signature cannot be written it must be authorised in the manner prescribed by
62 482 Attestation is not a more technical or
unsubstantial requirement within the meaning of section 36(4) of the Act and
cannot be dispensed with.
The attestation and the satisfaction must
exist at the presentation stage and a total omission of such an essential
feature cannot be subsequently validated at the scrutiny stage any more than
the omission of a candidate to sign at all could have been.
Section 36 of the Act is mandatory and
enjoins the Returning officer to refuse any nomination when there has been
"any failure to comply with any of the provisions of section 33."
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 213A and 213B of 1953.
Appeals by Special Leave against the Judgment
and Order dated the 24th June, 1953, of the Election Tribunal, Ludhiana, in
Election Petition No. 153 of 1952.
C. K. Daphtary, Solicitor-General for India,
(Harbans Singh Doabia and Rajinder Narain, with him) for the appellant in Civil
Appeal No. 213A.
Tilak Raj Bhasin and Harbans Singh for
respondent No. 2 in Civil Appeal No. 213A and the appellant in Civil Appeal No.
Naunit Lal for respondents Nos. 3 and 19 in
both the appeals.
1954. May 21. The Judgment of the Court was
delivered by BOSE J.-These are two appeals against the decision of the Election
Tribunal at Ludhiana.
The contest was for two seats in the Pun jab
Legislative Assembly. The constituency is a double member constituency, one
seat being general and the other reserved for a Scheduled Caste. The first
respondent is Atma Ram. He was a candidate for the reserved seat but his
nomination was rejected by the Returning Officer at the scrutiny stage and so
he was unable to contest the election. The successful candidates were Rattan
Anmol Singh, the appellant in Civil Appeal No. 213-A of 1953, for the general
seat and Ram Prakash, the appellant in Civil Appeal No. 213-B of 1953 for there
served. Atma Ram filed the present election petition.
The Election :Tribunal decided in 483 his
favour by a majority of two to one and declared the whole election void. Rattan
Anmol Singh and Ram Prakash appeal here.
The main question we have to decide is
whether the Returning Officer was right in rejecting the petitioner's
nomination papers. The facts which led him to do so are as follows.
The Rules require that each nomination paper
should be "subscribed" by a proposer and a seconder. The petitioner
put in four papers. In each case, the proposer and seconder were illiterate and
so placed a thumb-mark instead of a signature. But these thumb-marks were not
"attested". The Returning Officer held that without
"attestation" they are invalid and so rejected them. The main
question is whether he was right in so holding. A subsidiary question also
arises, namely, whether, assuming attestation to be necessary under the Rules,
an omission to obtain the required attestation' amounts to a technical defect
of an unsubstantial character which the Returning Officer was bound to
disregard under section 36(4) of the Representation of the People Act, 1951
(XLIII of 1951).
Section 33(1) of the Act requires each
candidate to "deliver to the Returning Officer...... a nomination paper
completed in the prescribed form and subscribed by the candidate himself as
assenting to the nomination and by two persons referred to in sub-section (2)
as proposer and seconder." Sub-section (2) says that"any person whose
name is registered etc... may subscribe as proposer or seconder as many
nomination papers as there are vacancies to be filled........
The controversy centers on the word
"subscribed" which has not been defined in the Act.
The prescribed nomination form referred to in
subsection (1) of section 33 is to be found in Schedule II. In this form we
have the following:"9. Name of the proposer
12. Signature of the proposer 484 13. Name of
16. Signature of the seconder." The
Oxford English Dictionary sets out thirteen shades of meaning to the word
',subscribe", most of them either obsolete or now rarely used. The only
two which can have any real relation to the present matter are the following:
1. "To write (one's name or mark) on,
originally at the bottom of a document, especially as a witness or contesting
party; to sign one's name to." This meaning is described as
2. "To sign one's name to; to signify
assent or adhesion to by signing one's name; to attest by signing." This
appears to be its modern meaning, and is also one of the meanings given to the
word "sign", namely "to attest or confirm by adding one's
signature; to affix one's name to (a document) late." One also finds the
following in Stroud's Judicial Dictionary, 3rd edition:
"Subscribe. (1) 'Subscribe' means to
write under something in accordance with prescribed regulations where any such
exist But though this is the strict primary meaning of the word, it may
sometimes, e.g., in the attestation of a will, be construed as 'to give assent
to, or to attest' or 'written upon "(3) 'Subscription is a method of
signing; it is not the only method'; a stamped, or other mechanical impression
of a signature is good, in the case of electioneering papers..." It is
clear that the word can be used in various senses to indicate different modes
of signing and that it includes the placing of a mark. The General Clauses Act
also says that"'sign' with reference to a person who is unable to write
his name, includes 'mark' But this is subject to there being nothing repugnant
in the subject or context of the Act. In our opinion, the crux of the matter
lies there. We have to see 485 from the Act itself whether "sign" and
"subscribe" mean the same thing and whether they can be taken to
include the placing of a mark. The majority decision of the Tribunal holds that
"sign" and "subscribe" are not used in the same sense in
the Act because a special meaning has been given to the word I sign" and
none to the word "subscribe", therefore, we must use
"subscribe" in its ordinary meaning;
and its ordinary meaning is to
"sign" but not to "sign" in the special way prescribed by
the Act but in the ordinary way; therefore we must look to the General Clauses
Act for its ordinary meaning and that shows that when it is used in its
ordinary sense it includes the making of a mark.
We agree with the learned Chairman of the
Tribunal that this is fallacious reasoning. The General Clauses Act does not
define the word "subscribe" any more than the Representation of the
People Act, and if it is improper to exclude the special meaning given to
" sign " in the Representation of the People Act because the word
"sign " is defined and not " subscribe," it is equally
improper to import the special definition of " sign " in the General
Clauses Act because that also defines only "sign" and not
"subscribe" and also because the " subject " and "
context " of the Representation of the People Act show that the writing of
a signature and the making of a mark are to be treated differently.
The learned counsel for the
respondent-analysed the Act for us and pointed out that the word "
subscribe " is only used in Chapter I of Part V dealing with the
Nomination of Candidates while in every other place the word " sign "
is used. We do not know why this should be unless, as was suggested by the
learned Solicitor-General, the Legislature wished to underline the fact that
the proposer and seconder are not merely signing by way of attesting the
candidate's signature to the nomination form but are actually themselves
putting the man forward as a suitable candidate for election and as a person
for whom they are prepared to vouch, also that the candidate's signature
imports more than a mere vouching for the accuracy of the 486 facts entered in
the form. It imports assent to his nomination. We think the learned
Solicitor-General is probably right because section 33 speaks of "a
nomination paper completed in the prescribed form and subscribed by the.
candidate himself as assenting to the nomination." But however that may
be, it.is evident from the form that " signatures are required. It is also
evident from the definition of sign " that the Legislature attached
special importance to the fact that in the case of illiterate persons unable to
write their names it is necessary to guard against misrepresentation and fraud
by requiring that their signatures should be formally authenticated in a
particular way. A special statutory cloak of protection is thrown around them
just as the ordinary law clothes pardanish in women and illiterate and ignorant
persons and others likely to be imposed on, with special protective covering.
Now it is to be observed that section 2 calls
itself an interpretation " section. It says" (1) In this Act, unless
the context otherwise
(k) 'sign' in relation to a person who is
unable to write his name means authenticate in such manner as may be
prescribed." It is evident then that wherever the, element of signing
" has to be incorporated into any provision of the Act it must be
construed in the sense set out above. Therefore, whether " subscribe
" is a synonym for " sign " or whether it means " sign
" plus something else, namely a particular assent, the element of "
signing " has to be present: the schedule places that beyond doubt because
it requires certain " signature*. " We are consequently of opinion
that the " signing," whenever a " signature " is necessary,
must be in strict accordance with the requirements of the Act and that where
the signature cannot be written it must be authorised in the manner prescribed
by the Rules. Whether this attaches exaggerated importance to the authorisation
is not for us to decide. What is beyond 487 dispute is that this is regarded as
a matter of special moment and that special provision has been made to meet
-such cases. We are therefore bound to give full affect to this policy.
Now if " subscribe " can mean both
signing, so called,, and the placing of a mark (and it is clear the word can be
used in both senses), then we feel that we must give effect to the general
policy of the Act by drawing the same distinction between signing, and the
making of a mark as the Act itself does in the definition of "sign."
it is true the word "subscribe" is not defined but it is equally
clear, when the Act is read as' a whole along with the form in the second
schedule, that "subscribe" can only be used in the sense of making a
signature and as the Act tells us quite clearly how the different types of
" signature " are to be made, we are bound to give effect, to ft. In
the case of a person who is unable to write his name his " signature "
must be authenticated in " such manner as may be prescribed." The
prescribed manner is to be found in rule 2(2)of the Representation of the
People (Conduct of Elections and Election Petitions) Rules, 1951. It runs as
" For the purposes of the Act or these
rules,, a person who is unable to write his name shall, unless otherwise
expressly provided in these rules, be deemed to have signed an instrument or
other paper if he has, placed a mark on such instrument or other paper in the
presence of the Returning Officer or the presiding officer or such other
officer as may be specified in this behalf by the Election Commission and such
officer on being satisfied as to his identity has attested the mark as being
the mark of such person." In view of this we are clear that attestation in
the prescribed manner is required in the case of proposers and seconders who
are not able to write their names.
The four nomination papers we are concerned
with were not " signed " by the proposers and seconders in the usual
way by writing their names, and as their marks are not attested it is evident
that they have not been " signed ", in the special way which the Act
488 requires in such cases. If they are not " signed " either in one
way or the other, then it is clear that they have not been " subscribed
" because " subscribing " imports a "signature" and as
the Act sets out the only kinds of "signatures" which it will
recognise as II signing" for the purposes of the Act, we are left with the
position that there are no valid signatures of either a proposer or a seconder
in any one of the four nomination papers. The Returning Officer was therefore
bound to reject them under section 36(2)(d) of the Act because there was a
failure to comply with section 33, unless he could and should have had resort
to section 36(4). That sub-section is as follows.
The Returning Officer shall not reject any
nomination paper on the ground of any technical defect which is not of a
substantial character." The question therefore is whether attestation is a
mere technical or unsubstantial requirement. We are not able to regard it in
that light. When the law enjoins the observance of a particular formality it
cannot be disregarded and the substance of the thing must be there.
The substance of the matter here is the
satisfaction of the Returning Officer at a particular moment of time about the
identity of the person making _a mark in place of writing a signature. If the
Returning Officer had omitted the attestation because of some slip on his part
and it could be proved that he was satisfied at the proper time, the matter
might be different because the element of his satisfaction at the proper time,
which is of the substance, would be there, and the omission formally to record
the satisfaction could probably, in a case like that, be regarded as an
unsubstantial technicality. But we find it impossible to say that when the law
requires the satisfaction of a particular officer at a particular time his
satisfaction can be dispensed with altogether. In our opinion, this provision
is as necessary and as substantial as attestation in the cases of a will or a
mortgage and is on the same footing as the II subscribing " required in
the case of the candidate himself If there is no signature and no mark the form
would have to be rejected and their 489 absence could not be dismissed as
technical and unsubstantial. The "satisfaction " of the Returning
Officer which the rules require is not, in our opinion, any the, less important
The next question is whether the attestation
can be compelled by the persons concerned at the scrutiny stage.
It must be accepted that no attempt was made
at the presentation stage to satisfy the Returning Officer about the identity
of these persons but evidence was led to show that this was attempted at the
scrutiny stage. The Returning Officer denies this, but even if the identities
could have been proved to his satisfaction at that stage it would have been too
late because the attestation and the satisfaction must exist at the presentation
stage and a total omission of such an essential feature cannot be subsequently
validated any more than the omission of a candidate to sign at all could have
been. Section 36 is mandatory and enjoins the Returning Officer to refuse any
nomination when there has been " any failure to comply with any of the
provisions of section 33............... The only jurisdiction the Returning
Officer has at the scrutiny stage is to see, whether the nominations are in
order and to hear and decide objections.
He cannot at that stage remedy essential
defects or permit them to be remedied. It is true he is not to reject any
nomination paper on the ground of any technical defect which is not of a
substantial character but he cannot remedy the defect. He must leave it as it
is. If it is technical and unsubstantial it will not matter. If it is not, it
cannot be set right.
We agree with the Chairman of the Election
Tribunal, that the Returning Officer rightly rejected these nomination papers.
The appeals are allowed with costs and the order of the Election Tribunal
declaring the elections of the two successful candidates to be wholly void is
set aside. The election petition is dismissed, also with costs.