Shradha Devi Vs. Krishna Chandra Pant
& Ors [1982] INSC 79 (26 October 1982)
DESAI, D.A.
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 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 682 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 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 683 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 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 sixth preferences 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 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 684
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]
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.
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 686 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 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 687 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
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 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 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 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 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) 694 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 695 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 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 696 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 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
697 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 corollary it is provided that if there is any
mark or writing on the ballot paper which enables the elector 698 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 699 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 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 700 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,
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 701 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.
Back
