Narendra Madivalapa Kheni Vs. Manikrao
Patil & Ors [1977] INSC 152 (28 July 1977)
GOSWAMI, P.K.
GOSWAMI, P.K.
KRISHNAIYER, V.R.
CITATION: 1977 AIR 1992 1978 SCR (1) 208 1977
SCC (4) 153
ACT:
Representation of the People Act, 1950 s.
23(3) and Representation of the people Act, 1951-Ss. 33(4) and 123(7)-Inclusion
of names in the electoral roll after 3 p.m.
of the last date for filing
nominations-Effect of-Collusion with electoral officer alleged but not
proved-If amounts to corrupt practice.
HEADNOTE:
Article 171(3) of the Constitution of India
provides that of the total number of members of the Legislative Council of a
State one-third shall be elected by electorates consisting of members, among
others, of local authorities in the State as Parliament may by law specify.
Part IV of the Representation of the People Act, 1950 which deals with
electoral rolls for council constituencies provides in s.
23(3) that no amendment, transposition or
deletion of any entry shall be made under s. 22 and no direction for the
inclusion of a name in the electoral roll of a constituency shall be given
under this section after the last date for making nominations for election in
that constituency.
Section 33(1) of the Representation of the
People Act, 1951 requires that each candidate shall deliver to the Returning
Officer a nomination paper "between 11 o'clock in the forenoon and 3
o'clock in the afternoon." By a notification issued under s. 30 of the
Representation of the People Act, 1951 the Electoral Registration Officer
appointed April 17, 1974 as the last date for presenting nomination papers from
the local authorities constituency.
In the election that ensued the appellant was
declared elected with 64 votes polled by him as against 54 polled by respondent
No. 1.
In his election petition the respondent
alleged that the appellant, in collusion with the electoral officer,
surreptitiously introduced names of 16 persons representing a taluk board after
3 p.m. on April 17, 1974 and that this act of his constituted a corrupt
practice within the meaning of s. 123 of the 1951 Act and that the election was
void.- The High Court set aside the election on the ground that any inclusion
of additional names in the electoral roll of a constituency after 3 p.m. on the
last date for making nominations fixed under s. 30(a) was illegal, and after
deducting the 16 votes cast by those persons from the total votes polled by the
appellant, declared the respondent duly elected.
Allowing the appeal in part and remitting the
case to the High Court.
HELD : (1) There was no telling material
other than speculation or weak suggestion that there was corrupt participation
on the part of the officers. The material link to make out invalidation of the
election on account of corrupt practice under s. 123(7) was missing because it
had not been made out in the evidence that there was collusion between the
second respondent and the appellant. [201A]
2. (a) The expression 'last date for making
nominations' must mean the last hour of the last date during which presentation
of nomination papers is permitted under s. 33 of the 1951 Act. In short s.
23(3) of the 1950 Act and s. 33(1), (4) and (5) of the 1951 Act interact,
fertilise and operate as a duplex of clauses. So viewed the inclusion of the
names in the electoral roll after 3 p.m. on April 17, 1974 is illegitimate and
illegal. [204F] The sixteen names brought into the electoral register
subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to
determine the returned candidate.
[205E] 194 Baidyanath [1970] 1 S.C.R. 839 and
Ramji Prasad Singh [1977] 1 S.C.R. 741 referred to.
(b)The prohibition contained in s. 23(3) of
the 1950 Act is based on public policy and serves a public purpose. Any
violation of such a mandatory provision conceived to pre- empt scrambles to
thrust into the rolls, after the appointed time, fancied voters by anxious
candidates or parties spells invalidity and there can be no doubt that if, in
flagrant violation of s. 23(3), names have been included in the electoral roll,
(he bonus of such illegitimate votes shall not accrue, since the vice of
viodance must attach to such names. [202F] (c)In our electoral scheme as
unfolded in the 1951 Act every elector ordinarily can be a candidate.
Therefore, his name must be included in the list on or before the date fixed
for nomination. Otherwise he loses his valuable right to run for the elective
office. It is thus vital that the electoral registration officer should bring
in the names of all the electors into the electoral roll before the date and
hour fixed for presenting the nomination paper. [202G-H] (d)Section 33(1)
specifies that the nomination paper shall be presented "between the hours
of 11 o'clock in the forenoon and 3 o'clock in the afternoon". That means
that the duration of the day for presentation of nomination papers terminates
at 3 o'clock in the afternoon. If an elector is to be able to file his
nomination paper, his name must be on the electoral roll at 3 p.m. on the last
day for filing nominations. So the temporal terminus ad quem is also the day
for finalisation of the electoral register and by the same token, that day
terminates at just that hour when the returning officer shuts the door. [204C]
(e)The inference that could be drawn from s. 33(4) is that there must be a
completed electoral roll when the time for filing the nomination paper expires.
Therefore, the final electoral roll must be with, the returning officer when
the last minute for delivering the nomination paper ticks off.
Subsequent additions to the electoral
register will inject confusion and uncertainty about the constituents or
electors, introduce a disability for such subsequently included electors to be
candidates for the election. [203D] (f)The cumulative effect of the various
strands of reasoning and the rigour of the language of s.23(3) of the 1950 Act
leaves no doubt that inclusion of the names in the electoral roll of a
constituency after the last date for making nominations for an election in that
constituency, must be visited with fatality. [203E] [The case had been sent to
the High Court for scrutinising the 16 ballots for the limited purpose of
discovering for whom, bow many of the invalid sixteen had been cast.]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 11 14 of 1976.
From the Judgment and Order dated 22nd
September 1976 of the Kamataka High Court in Election Petition No. 1 of 1974.
L. N. Sinha, K. R. Karanah & B. P. Singh
for the Appellant.
K. N. Bhat and (Miss) S. Pramila for the
Respondent No. 1 Y. S. Chitley and Narayan Nettar for Respondent No. 2 The
Judgment of the Court was delivered by KRISHNA IYER, J.-Four heavy volumes of
case records confron- ted us in this appeal, as counsel opened the arguments,
but some, Socratic processing seemed to condense the controversy and forensic
prolixity so much so we first thought the case had shrunk to such small
dimensions as to be disposed of in a short judgment. But what we initially
felt, when the brief narration of facts was given, proved a 195 snare. For,
when we read out in court our opinion on the only crucial aspect of the case,
counsel for the 1st respondent hopefully insisted that the factual grounds,
requiring our ploughing through ponderous tomes of testimonial collection,
pleadings and what not, should be investigated as he expected to sustain the
invalidation of the election by the High Court on the score of corrupt practice
and the consequential disqualification of the rival candidate i.e., the
appellant before us. He was entitled to press that part of his case and so we
agreed to hear both sides extensively thereon.
However, hours of argument after, we were
back to square one. At this stage, some relevant facts and circumstances need
narration. The Karnataka Legislative Council has, in its composition, some
members elected from the local authorities constituencies. One such member is
elected by the local bodies of Bidar district and the specific election that
falls for decision was held on May 12, 1974. According to the calendar for the
poll contemplated in s.30 of the Representation of the People Act, 1951
(hereinafter called the 1951 Act), the last date for presenting the nominations
was appointed as April 17, 1974. Section 33(1) requires that each candidate
shall deliver to the returning officer a nomination paper as set out in the
section 'between II o'clock in the forenoon and 3 o'clock in the afternoon'.
The appellant and the first respondent did
file their nomi- nations in conformity with the law; their scrutiny over, they
entered the fray and, after the poll was over, the appellant was declared
elected, having secured 64 votes as against the 1st respondent's 54 votes. The
frustrated 1st respondent found 16 illegitimate votes having been cast in
favour of the successful candidate and further discovered that these 16 electors
were ineligible to figure on the electoral roll but had been surreptitiously
introduced therein by collusion, fraud and other improper machinations in which
the returned candidate and the returning officer were collaborative actors. The
purity of the election was polluted. The result of the poll was materially
affected.
The electoral process was vitiated by
'corrupt practice' in which the appellant and the 2nd respondent were particeps
criminis. He ventured on an election petition with the prayer to set aside the
poll verdict inter alia under s. 123(7) of the 1951 Act and also sought a
declaration 'that he was duly elected on the score that the exclusion of the
invalid votes, very probably cast in favour of the appellant, led inevitably to
his arithmetical success as the one who had secured the larger number of valid
votes. Such was his case.
The petitioner had made somewhat vague,
sweeping and speculative allegations about government, higher and lower
echelons of officialdom and the rival candidate but, if an apology for
specificity is partially present in the petition, it is about the charge of
corrupt practice roping in the returning officer-cum-electoral registering
officer (2nd respondent) and the successful candidate (appellant).
No issue was originally framed on the
critical question of corrupt practice but the learned judge permitted evidence
thereon to be adduced a procedure difficult to appreciate.
After the trial was virtually closed and the
arguments finished, the Court discovered the need for framing this decisive
issue. On objection as to the absence of material facts and 196 or material
particulars, the learned Judge framed an issue also on the actual vagueness and
legal flawsomeness of pleadings on corrupt practice. Naturally, this latter
question demanded prior decision but, curiously, the Court delivered all its
findings, on the day of judgment, a faux pas which we must point out.
Processual proprieties are designed to ensure fair play in adjudications and
while such prescriptions are not rigid punctilios, their observance serves to
help the judge do, effective justice between parties and the disputants have
faith in the intelligent impartiality and full opportunity so necessary for the
success of the rule of law. In election proceedings where the whole community
is silently present and the controversy is sensitive and feelings suspicious,
the principles of procedural rectitude apply a fortiori. The judge is the
guardian of processual justice and must remember that judgment on judgment belongs,
in the long run, to the people. We state this stern proposition here not merely
because a forensic stitch in time saves cassational nine but because courts are
on continuous trial in a democracy. In this case we are not satisfied that
either party has suffered in substance and procedural breaches, unless they
spell unmerited prejudice, may be brushed aside at the appellate level.
Having said this, we hasten to add that had
not the learned judge uncovered the suspect happenings sinisterly hovering around
the last day for finalising the electoral roll, the dubious doings of the
political government in a seat-hungry setting might not have been ventilated
for public edification. The electoral events brought out in evidence are
'power' portents 'to be prevented preemptively by law and this prompts us to
deal with the testimonial circumstances surrounding the inviolable roll of
voters having been adulterated after the final hour, zealous officers
frantically exerting themselves in what seems at first sight to be a series of
belated circus operations geared to inclusion of additional names in the rolls
before 17th mid-night drew the curtain. Caesar's wife must be above suspicion
and wielders of public power must fill this bill. A moral matrix and administrative
culture must nurture the power process if democracy is not to commit suicide.
We will make good the relevance of these
critical statements with reference to the incontrovertible facts of this case.
However, we do not delve into the minutiae of
evidence or span the entire factual range, that being otiose. A catalogue of
circumstances, fair to both sides, will tell its own moral tale and so we set
it out.
The last date for completing the electoral
roll was April 17, 1974. The rival candidates (the appellant and the 1st
respondent) belonged to opposing political parties but the appellant’s party
was in power. Both the candidates had semi-V.I.P. status in their respective
parties. One member more in the Legislative Council would, pro tan to,
strengthen the Ministry. This political backdrop be lights some of the things
which occurred on the, dates proximate to the completion of the electoral roll.
The administrative locomotion and the human motivation behind what the trial
judge had described as 'manouvres' is simple to understand, although, as will
be shown below, we do not agree 197 wholly with all the deductions of the High
Court. A particular party is in office. The strength of its members in both
Houses is therefore of political significance, especially if fluid Politics
turns out to be the field of all possibilities. Karnataka has a bicameral
legislature, and it is reasonable to suppose that the political government has
an understandable concern in the election of a member of the Legislative
Council, who will be of their party. Bidar district in Karnataka has a local
authorities constituency seat, to be elected by the members of the local bodies
there. It follows that the potential electors who are likely to favour their
candidate must be brought on the rolls to ensure his victory. Inevitably there
was therefore keen interest in incorporating in the electoral roll the members
of the Taluk Development Board, Bidar (for short, the Bidar Board). The
election to the Bidar Board had taken place years ago, 11 of them having been
elected way back in 1968 and 8 later. The election of the 11 members had been
duly notified in 1968 but the Board itself stood suspended, an Administrator
having been appointed to run its affairs. 8 members who had been later elected
to the Board landed up in the High Court on account of writ petitions filed by
their rivals. Stay had been granted by the High Court and this led to an
absence of 2/3 of the total members being able to function, statutorily
necessitating the appointment of an Administrator. Long later the High Court
disposed of the writ petitions whereby 3 returns were set aside and 5 upheld.
The arithmetical upshot of these happenings was that there were 16 members duly
elected to the Bidar Board, and the High Court having disposed of the writ
petitions in June 1972, the local body could have been liberated from the
bureaucratic management of an Administrator and allowed to function through
elected representatives. All that was needed to vivify this body of local
self-government was a notification under the Mysore Village Panchayats Act X of
1959, terminating the Administrator's term, and perhaps another extending the
terms of some members.
Elections to local bodies and vesting of
powers in units of self government are part of the Directive Principles of
State Policy (Art. 40 of the Constitution) and, in a sense, homage to the
Father of the Nation, standing as he did for participative democracy through
decentralisation of power.
Unfortunately, after holding elections to the
Bidar Board and making people believe that they have elected their
administrative representatives at the lowest levels, the State Government did
not bring to life the local board even long after the High Court had disposed
of the challenges to the elections in June 1972. A government, under our
Constitution, must scrupulously and energetically implement the principles
fundamental to the governance of the country as mandated by Art. 37 and, if
even after holding elections Development Boards are allowed to remain moribund
for failure to notify the curtailment of the Administrator's term, this neglect
almost amounts to dereliction of the constitutional duty. We are unhappy to
make this observation but power to the people, which is the soul of a republic,
stands subverted if de entralisation and devolu- tion desiderated in Art. 40 of
the Constitution is ignored by executive inaction even after holding election
to the floor-level administrative 198 bodies. The devolutionary distance to
ideological Rajghat from power-jealous State capitals is unwillingly long
indeed, especially in view of the familiar spectacle of long years of failure
to hold elections, to local bodies, supersession aplenty of local
self-government units, and gross inaction even in issuing simple notifications
without which elected bodies remain still-born. 'We, the people' is not
constitutional mantra but are the power-holders of India from the panchayat
upward.
Back to the main trend of the argument. It
became now compulsive for the party-in-power to de-notify the Administrator and
revive the elected body if they wanted the members of the Bidar Board to vote
perhaps in favour of their candidate. The 11 members elected long back in 1968
could not vote, on account of the expiry of the 4year term unless in view of s.
108 of Act 10 of 1959, the government issued another notification extending the
term of office of these members. So the elective interest of the candidate of
the party-in-power could be promoted only if three or four quick administrative
steps were taken. Firstly, there was to be a notification ending the
Administrator's term over the Bidar Board. Secondly, there was to be a
notification extending the term of the 11 members elected in 1968.
Thirdly, there was to be a notification of
the election of the 5 members whose return had been upheld in the High Court in
June 1972. Fourthly, the electoral roll had to be amended by inclusion of these
16 names. If these steps were duly taken, 16 additional members would become
electors and the party-in-power (if these electors be-longed to that party or
were under its influence) could probably expect their votes. The poll results
show that the contest was keen and these 16 votes would have been of great
moment. In this high-risk predicament, long bureaucratic indolence in issuing
notifications and political indifference to the functioning of local bodies
produced a situation where the elected roll did not contain the names of the 16
members of the Bidar Board.
Only a few days prior to April 17, 1974-the D-day-the
affected candidate, i.e., the appellant, moved the government for initiation of
the steps mentioned above' but nothing happened. On April 16, the day before
the crucial date for closing the electoral roll, i.e., the last date for making
nominations, the appellant moved the Minister concerned who was in Bidar to get
the necessary administrative steps taken quickly. He also moved the returning
officer, RW 2. We find the Minister making an endorsement on the petition. We
notice the returning officer seeking telegraphic instructions from government.
We see government sending an Under Secretary,
PW 3, by air from Bangalore to Hyderabad and onward by car to Bidar with some
orders. This PW 3 probably apprised the returning officer RW 2 about orders
having been passed raving the way for inclusion of the 16 names in the
electoral roll. PW 3, the Under Secretary, for reasons not known, makes a
bee-line the same evening to Gulbarga where be meets the Minister.
The returning officer does not have with him
any gazette' notifications. as we see that under s. 2(20) of Act X of 1959, a
notification must possess the inalienable attribute of publication in the
official gazette. Admittedly, the returning officer did not come by any 199 of
the necessary notifications before the evening of the 17th. Admittedly, he did
not have any gazette notifications before April 25th. Under s. 27 of the
Representation of the People Act, 1950, the electoral registration officer who,
in this case, is also the returning officer, had to have before him gazette
notifications which clearly he did not have till the 25th, i.e., 8 days after
the relevant date.
Nevertheless he, obligingly enough including
the 16 names which was in breach of the legal provisions.
Frenzied official movements on and after
April 16 are visible in this case. The scenario excites suspicion. The
candidate meets the Minister of his party on the 16th. The returning officer
takes the unusual steps of sending a telegram for instructions from government
for inclusion of names in the electoral roll. The Secretariat despatches an
Under Secretary to reach Bidar by air dash and long car drive. A meeting
between the Under Secretary and the electoral registration officer follows and
then the Under Secretary winds up the day by meeting the Minister, presumably
to report things done, and the registration officer supplements the electoral
roll by including 16 more names, without getting the gazette notification. We
have no doubt, as we will presently explain, that this inclusion is invalid,
but what we are presently concerned with is the protracted inaction for years
of the State government in issuing simple notifications to resuscitate the
Bidar Board and the sudden celerity by which a quick chase and spurt of action
resulting in a Minister's endorsement, the regis- tration officer's telegram,
Secretariat hyper busyness, the unusual step of an Under Secretary himself
journeying with government orders to be delivered to the registration officer,
the electoral registration officer hastening to amend the, electoral roll
slurring over the legal require- ment of a gazette notification and making it
appear that everything was done on the 17th before mid-night, and a few other
circumstances, make up a complex of dubious doings designed to help a certain
candidate belonging to the party- in-power.
The officers had no, personal interest as
such and, in fairness, we must state the High Court has exonerated them of any
oblique conduct to further their own interests. We wish to state clearly that having
taken a close look at the developments we are not inclined to implicate any of
the officers-and there are quite a few involved with mala fide conduct or
collusion with the returned candidate. Legal peccadilloes are not fraud or
collusion without more.
However, the performance of the political
government and the pressurization implicit in the hectic activities we have
adverted to, read in the light of the likely political gains accruing to the
party-in-power, generate apprehensions in our minds about the peril to the
electoral process if poli- tical bosses in office rubberise the public services
to carry out behests which are contrary to the law but non- compliance with
which might be visited with crypto-punitive consequences. We would have taken a
harsher view against the public servants bad we something more than what may
even be a rather strong suspicion of obliging deviance.
Sometimes they are transfixed between Scylla
and Charybdis.
Even 200 strong suspicion is no substitute,
for proof. It has often been said that suspicion is the Upas tree under whose
shade reason fails and justice dies. There is, a core of truth in this caveat.
Shri Bhat, counsel for the 1st respondent,
argued his case strenuously but could not make out that vital nexus between the
candidate who stood to gain and the officers whose action he impugned. More.
over, the movements of the Minister at about that time raises doubts and- the
huge expenditure involving in rushing an Under Secretary from Bangalore by air
and road to Bidar were a drain on the public exchequer which could have been
avoided if action had been taken in time by a few postal communications. But
the trial judge erred in substituting suspicion for certitude and drawing
untenable inferences where paucity of evidence snapped the nexus needed for
collusion. A court must, as usual, ask for proof beyond reasonable doubt from
the party setting up corrupt practice even when there is a veneer of power
politics stooping to conquer and officers thereby becoming vulnerable to
'higher displeasure.
The faith of the people in the good faith of
government is basic to a republic. The administrative syndrome that harms the
citizens' hopes in the State often manifests itself in callously slow action or
gravely suspicious instant action and the features of this case demonstrate
both. Pi Admittedly, the Bidar Board elections were substantially over in 1968
and were more or less complete in 1972 and yet the necessary notifications in
the gazette, which are the statutory precondition for the local body to be
legally viable, were, for years, not published and, when the critical hour for
the electroal list to be finalised fell at 3 p.m. on April 17, 1974, the
government and its officer,,, went through exciting exercises unmindful of legal
prescriptions and managed the illegitimate inclusion of 16 names in the
electoral roll. We hope that the civil services in charge of electoral
processes which are of grave concern for the survival of our democracy will
remember that their masters in statutory matters are the law and law alone, not
political superiors if they direct deviance from the dictates of the law. It is
never to be forgotten that our country is committed to the rule of law and
therefore functionaries working under statutes, even though they be government
servants, must be defiantly dedicated to the law and the Constitution and,
subject to them, to policies, projects and directions of the political
government.
"Be you ever so high, the law is above
you"-this applies to our Constitutional order.
Shri Bhat, counsel for the 1st respondent
ultimately argued these aspects of the case. But, when we were more than
half-way through, it became clear that the material link to make out
invalidation of the election on account of 'corrupt practice under S. 123(7) of
the 1951 Act was missing because it had not been made out in the evidence that
there was collusion between the 2nd respondent and the appellant. At that
stage, taking a realistic stance, counsel acceded to our view that while there
was sufficient room for the 1st respondent to be 201 disturbed about the
electoral verdict on the score of the inclusion of 16 names there was not any
telling material, other than speculation or weak suggestion, that there was
corrupt participation on the part ,,of the officers. If this position were
right-and we hold it is-what remains to be done is to ascertain the legal
effect of the inclusion in the electoral roll of the new names after the expiry
of the appointed ,hour and date.
According to the calendar for the poll
contemplated in s. 30 of the 1951, Act the last date for making the nominations
was appointed as April 17, 1974. Section 33(1) of the 1951 Act requires that
each , candidate shall deliver to the Returning officer a nomination paper as
set out in the section : "between 11 o'clock in the forenoon and 3 o'clock
in the afternoon". The appellant and the 1st respondent did ,file their
nominations in conformity with ss. 30 and 33 of the 1951 Act but the electoral
registration officer 2nd respondent in the appeal), included the names of 16
persons representing the Bidar Board after 3 p.m. of April 17, 1974.
There is a dispute between the parties as to
whether such inclusion was directed on the 17th (after 3 p.m.) or on the 18th,
the former being the case of the appellant as well as the 2nd respondent, the
latter being the case of the 1st respondent and upheld by the High Court. The
Court held that, in law, any inclusion of additional names in the electoral
roll of a constituency after 3 p.m. on the last date for making nomination
fixed under s. 30(a) of the 1951 Act was illegal. Consequently. it arrived at
the follow-up decision that the 16 votes which had been cast by those
objectionably added, had to be ignored. On a further study of the evidence, the
Court concluded that these 16 votes had been cast in favour of the elected
candidate and should therefore be deducted from his total tally. The appellant,
who had secured 64 votes as against respondent no.. 1's 54, had only a lead of
10 votes. He slumped below the 1st respondent when 16 votes were deducted from
his total. The necessary result, in the view of the High Court, was that not
only had the appellant's election to be set aside but the 1st respondent
deserved to be declared duly elected.
This was done.
An appreciation of the evidence bearing on
the question as to whether the 2nd respondent i.e., the Registration officer
bad acted under the appellant's oblique influence in including the additional
names after the last date for such inclusion, has led us to overturn the
affirmative answer from the learned trial judge. The holding that a 'corrupt
practice', within the ambit of s. 123, had been committed by the appellant who
was therefore disqualified under s. 8A led to two consequences. The appellant,
who had won the election at the polls, lost the election in the court and,
worse still, suffered a six-year disqualification. The doubly aggrieved
appellant has challenged the adverse verdict and the wounded 2nd respondent
(electoral registration officer) has separately appeared to wipe out the
damaging effect of the obliging inclusion of names of electors after the time
set by the law was over. We have already set aside the finding under s. 123(7)
of the 1951 Act, of corrupt practice and with it falls the disqualification.
2-768 SCI/77 202 The short point, whose
impact may be lethal to the result of the election, is as to whether s. 23 of
the 1950 Act should be read down in conformity with ss. 30 and 33 of the 1951
Act. The proposition,, which has appealed to the High Court, has the approval
of the ruling in Baidyanath(1). The Court, there, observed:
"in our opinion cl. 23(a) takes away the
power of the electoral registration officer or the chief electoral officer to
correct the entries in the electoral rolls or to include new names in the
electoral rolls of a constituency after the last date before the completion of
that election.
It interdicts the concerned officers from
interfering with the electoral rolls under the prescribed circumstances. It
puts a stop to the power conferred on them. Therefore it is not a question of
irregular exercise of power but a lack of power.
(p.842 We have earlier come to the conclusion
that the electoral registration officer had no power to include new names in
the electoral roll on April 27, 1968. Therefore votes of the electors whose
names were included in the roll on that date must be held to, be void
votes." (p. 843) There is a blanket ban in s. 23(3) on any amendment,
transposition or deletion of any entry or, the issuance of any direction for
the inclusion of a name in the electoral roll of a constituency 'after the last
date for making nominations for an election in that constituency...... This
prohibition is based on public policy and serves a public purpose as we will presently
bring out. Any violation of such a mandatory provision conceived to preempt
scrambles to thrust into the rolls, after the appointed time, fancied voters by
anxious candidates or parties spells invalidity and we have, therefore, no
doubt that if in flagrant violation of s. 23(3), names have been included in
the electoral roll, the bonus of such illegitimate votes shall not accrue,
since the vice of avoidance must attach to such names. Such void votes cannot
help a candidate win the contest.
Why do we say that there is an underlying
public policy and a paramount public purpose served by s. 23(3) ? In our
electoral scheme as unfolded in the 1951 Act, every elector ordinarily can be a
candidate. Therefore, his name must be included in the list on or before the
date fixed for nomination. Otherwise he loses his valuable right to run for the
elective office. It is thus vital that the electoral registration officer
should bring in the names of all the electors into the electoral roll before
the date and hour fixed for presenting the nomination paper. There is another
equally valid reason for stressing the inclusion of the names of all electors
before (1) [1970] 1.S.C.R. 839.
203 the hour for delivering to the returning
officer the nomination paper. Section 33(4) of the 1951 Act reads "(4) On
the presentation of a nomination paper, the returning officer shall satisfy
himself that the names and electoral roll numbers of the Candidate and his
proposer as entered in the nomination paper are the same as those entered in
the electoral rolls :
x x x x" In the light of this provision
the returning officer, on receipt of the nomination paper, satisfies himself
that the candidate's name and electoral roll number are correctly entered.
Necessarily, this is possible only if the electoral roll contains the names of
all the electors.
Likewise, s. 33(5), which deals with a
candidate who is an elector from a different constituency, requires of the
candidate the production of a certified copy of the relevant entry showing his
name in such a roll. The inference is inevitable that there must be a completed
electoral roll when the time for filing the nomination paper expires. The
argument is therefore incontrovertible that the final electoral roll must be
with the returning officer when the last minutes for delivering the nomination
paper ticks off.
Subsequent additions to the electoral
register will inject confusion and uncertainty about the constituents or
electors, introduce a disability for such subsequently included electors to be
candidates for the election and run counter to, the basic idea running through
the scheme of the Act that in the preponderant pattern of elections, viz., for
the legislative assemblies and parliament, the electors shall have the
concomitant right of being candidates. The cumulative effect of these various
strands of reasoning and the rigour of the language of s. 23(3) of the 1950 Act
leaves no doubt in our minds that inclusion of the names in the electoral roll
of a constituency after the last date for making nominations for an election in
that constituency, must be visited with fatality. Such belated arrivals are
excluded by the talons of the law, and must be ignored in the poll. It is
appropriate to quote from Baidyanath(1) here :
"The object of the aforesaid provision
is to see that to the extent possible, all persons qualified to be registered
as voters in any particular constituency should be duly registered and to
remove from the rolls all those who are not qualified to be registered.
Sub-s. (3) of s. 23 is not an important
exception to the rules noted earlier. It gives a mandate to the electoral
registration officers not to amend, transpose, or delete any entry in the
electoral roll of a constituency after the last date for making nominations for
election in that constituency and before the completion of that election.
If there was no such provision, there would
have been room for considerable manipulations, particularly when there are only
limited number of electors in a constituency. But for that (1) [1970] 1 S.C.R.
839,842.
204 provision, it would have been possible
for the concerned authorities to so manipulate the electoral rolls as to
advanced the prospects of a particular candidate." A more trickly issue
now arises, Assuming April 17, 1974 to be the last date for filing nominations
(and it is so in the case), can the electoral roll be amended on that date to
include additional names, but after the- hour set for presenting the nomination
paper ? Section 33(1) specifies inflexibly that the nomination paper shall be
presented between the hours of 11 o'clock in the forenoon and 3 o'clock in the
afternoon'. That means that the duration of the day for presentation of
nomination papers terminates at 3 o'clock in the afternoon. If an elector is to
be able to file his nomination paper, his name must be on the electoral roll at
3 p.m., on the last day for filing nominations. So the temporal terminus adquem
is also the day for finalisation of the electoral register and by the same
token, that day terminates at just that hour when the returning officer shuts
the door. The day is truncated to terminate with the time when reception of
nominations closed.
Section 23 of the 1950 Act does state that
the inclusion of the names in the electoral roll can be carried out till the
last date for making nominations for an election in the concerned constituency.
What, then, is the last date? When does the last date cease to be? If the
purpose of the provision were to illumine its sense, if the literality of the
text is to be invigorated by a sense of rationality, if conscionable
commonsense were an- attribute of 'statutory construction, there can hardly be
any doubt that the expression 'last date for making nominations' must mean the
last hour of the last date during which presentation of nomination papers is
permitted under S. 33 of the 1951 Act.
In short, S. 23 (3) of the 1950 Act and s.
33(1), (4) and (5) of the 1951 Act interact, fertilise and operate as a duplex
of clauses. So viewed, the inclusion of the names in the electoral roll after 3
p.m., on April 17, 1974, is illegitimate and illegal.
At this stage, it may be appropriate to make
reference to Ramji Prasad Singh(1) to which one of us was a party.
Indeed, attention of counsel was invited to
this decision by the Court. That case turned on the inclusion of 40 voters in
contravention of S. 23(3) of. the 1950 Act. By incorporating in the electoral
roll new names after the last date for filing nomination, this Court held that
such inclusion of new names would be clearly in breach of the mandate contained
in S. 23(3) of the 1950 Act and, therefore, beyond the jurisdiction of the
electoral registration officer. This view is precisely what we have taken in
the present case.
In that case this Court, on fact, took the
view that the communication from the Chief Executive Officer of the local
authority to substitute certain new names in the electoral roll could not have
been acted upon (1) [1977] 1 S.C.R. 741.
205 before April 6, 1972, the last date of
nomination being April 5, 1972.This is clear from the following observation in
the judgment :
"In fact the letter was 'diarised' by
Shri Bose's office on the 6th. . . The fact of the matter seems to be that the
notifications of the 4th April came too late for being acted upon before the
dead-line, which was the 5th.
The red tape moved slowly, the due date
expired and then everyone awoke to the necessity of curing the infirmity by
hurrying with the implementation of the notifications.
But it was too late and the law had already
put in seal on the electoral roLL as it existed on the 5th April. It could not
be touched thereafter, until the completion of the election." This Court,
in that case, observed that it was 'impossible to accept the half-hearted claim
of Shri Bose that he passed orders for inclusion of the new names on the 5th
itself'.
This Court was not called upon to go into the
question as to what would be the legal position if the electoral rolls were
actually amended at 11.30 p.m. on 5th April after the last hour for the
nomination, viz., 3 p.m. on that day. This finer facet which falls for
consideration in the present appeal viz., whether the 'last day' contemplated
in s. 23(3) of the 1950 Act ends at 3 p.m. on that day for the purpose, or
continues until mid-night did not actually arise for judicial investigation in
Ramji Prasad's Case(supra).
The upshot of the above interpretation is
that the 16 names which have been brought into the electoral register
subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to
determine the returned candidate.
The learned Judge has declared the 2nd
respondent duly elected on the strength, mainly, of inference drawn from the
oral evidence of the rival candidates. The ballots are alive, and available and
speak best. Why, then, hazard a verdict on the flimsy foundation of oral
evidence rendered by interested parties ? The vanquished candidate's apse
digits or the victor's vague expectations of voters' loyalty-the grounds relied
on-are shifting sands to build a firm finding upon, knowing how notorious is
the cute art of double-crossing and defection in electoral politics and how
undependable the testimonial lips of partisans can be unless authenticated by
surer corroboration. Chancy credulity must be tempered by critical appraisal,
especially when the return by the electoral process is to be overturned by
unsafe forensic guesses., And where the ground for recount has been fairly laid
by testimony, and the ballot papers, which bear clinching proof on their bosoms,
are at hand, they are the best evidence to be looked into. No party can run
away from their indelible truth and we wonder why the learned judge avoided the
obvious and resorted to the risky.
May be thought reopening and recount of
ballots may undo the secrecy of the poll. We are sure that the correct course
in the circumstances of this case is to send for and scrutinize the 16 ballots
for the limited purpose of discovering for whom, how many of the invalid
sixteen have been cast.
Secrecy of ballot shall be maintained when
scrutiny is conducted and only that part which reveals the vote (not the
persons who voted) shall be open for inspection.
206 What, then, is the result of the reasoning’s
which have prevailed with us ? It is simply this, viz., that the 16 votes of
the members of the Bidar Board should be excluded and the consequential tilting
of the result re-discovered.
We are, therefore, constrained to direct the
High Court to send for the ballot papers and pick out the 16 ballots relating
to the Bidar Board members, examine them without exposing the identity of the
persons who have voted and to whom they have voted and record a rectally
excluding these 16 tainted votes from the respective candidates. It the
resultant-balance-sheet shows that the appellant has polled less valid votes
than the 1st respondent, his election will be set aside and the 1st respondent
declared duly elected.
If, on the other hand, despite these
deletions the appellant scores over the 1st respondent, his return will be
maintained. Any way, counsel on both sides agree that the best course will be
to call for a report from the High Court in the light of the operations above
indicated. The learned Single Judge who heard the case will examine the 16
ballots as directed above consistently with natural justice, record the number
of votes out of the 16 each has got and forward to this Court a comprehensive
and correct statement with the necessary particulars. This report shall be made
within 3 weeks from the receipt of the records from this Court and the appeal
shall be posted for disposal immediately the report reaches. With
these-directions we dispose of the appeal pro tempore.
By way of post-script, we may state that
counsel for the 1st respondent submitted, after we crystallized the directions
indicated above, that he was not too sure whether the 16 ballot papers could be
identified. The appellant's counsel, however, asserted that there were numbers
indelibly imprinted on the reverse of the ballot papers and, as such, the
identification of 16 impugned votes may not present a problem. In the event of
impossibility of fixing identity, a report to. that effect will be forthcoming
from the High Court and we may, notwithstanding the observations about the oral
evidence made above, rehear the case with a view to record our finding as to
which way the voting went, out of the offending 16, so that we may determine
whether the result of the election has been materially affected. If it is not
possible, further suitable directions will be considered.
We may also mention that at one stage of the
arguments Shri L.N. Sinha drew our attention to a designedly wide amendment to
the Act of 1951 made in the wake of the election case of Smt. Indira Gandhi.
Its validity, for our provisions, has been upheld by this Court in Smt. Indira
Nehru Gandhi v.
Raj Narain(1). It was pressed before us that
with the re- definition of 'candidate' in S. 79(b) and the addition of a
proviso to S. 127(7), by Act XL of 1975, the present election petition had met
with its statutory Waterloo. But Shri Bhat urged that his averments of
officials' abetment of promotion of the appellant's candidacy related also to a
point of time after the nomination paper was filed. He also submitted that the
imputations against the electoral registration officer were so far beyond his
duties that the blanket proviso could not protect the acts. Since we have taken
the view that corrupt practice, even under the amended S. 123(7), has not been
established, (1) [1976] 2 S.C.R. 347.
207 the pronouncement on the exonerative
efficacy of the amended Act does not arise. But officials must realise-and so
too the highest in Administration-that the proviso to s. 123(7) does not
authorise ,out-of-the-way doings which are irregular. A wrong does not become
right if the law slurs over it.
We part with this case with an uneasy mind.
There is a finding by the High Court that an influential candidate had
interfered with officials to adulterate an electoral roll.
We have vacated the finding but must warn
that the civil services have a high commitment to the rule of law, regardless
of covert commands and indirect importunities of bosses inside and outside
government. Lord Chesham said in the House of Lords in 1958 : "He is
answerable to law alone and not to any public authority.". A suppliant,
obsequious, satellite public service-or one that responds to allurements
promotional or pecuniary-is a danger to a democratic polity and to the
supremacy of the rule of law. The courage and probity of the hierarchical election
machinery and its engineers, even when handsome temptation entices or huffy
higher power browbeats, is the guarantee of electoral purity. To conclude, we
are unhappy that such aspersions against public servants affect the integrity
and morale of the services but where the easy virtue of an election official or
political power-wielder has distorted the assembly-line operations, he will
suffer one day. Be that as it may, we express no final opinion beyond what has
already been said.
P.B.R. Appeal allowed in part.
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