S. Sivaswami Vs. V. Malaikannan &
Ors [1983] INSC 130 (27 September 1983)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) DESAI, D.A.
MISRA, R.B. (J)
CITATION: 1983 AIR 1293 1984 SCR (1) 104 1984
SCC (1) 296 1983 SCALE (2)418
CITATOR INFO :
R 1984 SC1513 (5) F 1990 SC 838 (17)
ACT:
Election-Law-Representation of the People
Act, 1951, Sections 80 to 83, 98, 100(1) (d) (iii) and (iv) and section
101-Rejection of ballot papers where the marking was partially in the column of
the candidate and partly in the shaded area and also those where the marking
was partially in the candidates column and partially on the dividing line in
the bottom as invalid, based on the illustration at page 40 of the pamphlet
containing instructions in Tamil and issue by the Chief Electoral Officer,
Tamil Nadu-Validity of-Conduct of Election Rules, 1961-Principle of Rule 39(2)
(b) explained.
HEADNOTE:
In the General Elections to the Tamil Nadu
Assembly held in May 1980, the appellant contested for the llayangudi Assembly
Constituency seat and was duly elected as he polled 34437 votes. The first
respondent who had polled 34381 votes and missed by a narrow margin of 56 votes
filed an election petition before the High Court of Madras on three grounds
viz., (a) improper rejection by the Returning Officer of valid votes cast in
favour of the respondent; (b) improper reception of invalid votes cast in
favour of the appellant and (c) improper treatment of valid votes cast in
favour of the first respondent and the 3rd respondent as votes cast in favour
of the appellant. The High Court accepted the petition on its finding on the
first ground in favour of the 1st respondent and ordered rescrutiny of the
votes rejected as invalid. Hence the appeal by special leave.
Dismissing the appeal, the Court
HELD: 1:1 The pamphlet issued in Tamil titled
"A pamphlet showing illustrative cases of valid and invalid postal and
ordinary ballot papers "(Ex P3) issued by the chief Electoral Officer,
Tamil Nadu is misleading and therefore should be withdrawn. [111 D] 1:2. In the
illustration of invalid papers appearing at page 40 of the Book (Ex P3), the
major portion of the marking is in the shaded area and a small portion of the
mark is in the column of the candidate. Apparently what was intended to be printed
was an illustration showing a ballot paper in which the whole of the marking
was in the shaded area only without any portion of it being in the column of
the candidate. The illustration as printed in the pamphlet obviously conveys
the erroneous impression that a ballot paper where the marking is partly in the
column of the candidate and partly in the shaded area is to be rejected by the
Returning Officer as invalid. This is 105 directly contrary to the intendment
of the relevant rule and also the express wording of the instructions issued by
the Election Commission.
[110 H; 111 A-B] In the instant case the
Returning Officer was obviously misled by the aforesaid illustration contained
in the pamphlet, Ex. P 3 and that was the sole reason why he rejected as
invalid the ballot papers where the marking was contained partly in the column
of the first respondent and partly on the demarcating line or shaded area. Had
the Returning Officer taken the trouble to study the instructions contained in
the "Handbook for the Returning Officer" it should have been apparent
to him that the illustration aforementioned contained in Ex. P3 did not
correctly reflect the position laid down in the rules and instructions. [111
C-D] 2:1 The essence of the principle in Rule 39(2) (b) of the Conduct Rules,
1961, is that so long as the ballot paper bears a mark made with the instrument
supplied for the purpose, the ballot paper shall not be rejected as invalid, if
it is reasonably possible to gather a definite indication from the marking as
to the identity of the candidate in favour of whom the vote had been given.
[109 C-D] 2:2. Nearly 90% of the electorate in this country consists of
illiterate and uneducated rural folk totally unacquainted with the intricacies
of the rules and technicalities of procedure pertaining to elections. Even if
the best of endeavour is made to explain to them such complicated rules and
procedures they may not be capable of grasping and fully understanding all the
implications and actually carrying them into effect while exercising their
franchise. If the right conferred on the people to choose their representatives
to the State Legislatures and the Parliament through the process of free and
fair elections is to be meaningful the will of the illiterate and unsophisticated
voter expressed through a marking on the ballot paper which though not strictly
inside the column of the particular candidate is clearly indicative of the
identity of the candidate for whom the vote is cast has to be respected and
given its full effect. The Election Commission has manifested due awareness of
this stark reality while issuing instructions to the Returning Officers
regarding the principles to be adopted for rejection of ballot papers in the
"Handbook for Returning Officers" published by the Commission in
1982, and also a "Handbook for candidates' for election to the House of
People, Legislative Assemblies of States and Union Territories etc.
[109 D-G] Observation: In order to avoid a
recurrence of such unfortunate instances of illegal rejection of votes on the
basis of misleading illustration contained in the pamphlet, Ex. P3, it is
essential that immediate action should be taken by the Chief Electoral Officer,
Tamil Nadu to withdraw the said pamphlet containing illustrations correctly
reflecting the legal position under relevant rules and instructions relating to
the scrutiny acceptance or rejection or ballot papers. [111 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1737 (NCE) of 1981.
106 Appeal by Special leave from the Judgment
and Order dated the 29th June, 1981 of the Madras High Court in Election
Petition No. 3 of 1980.
R.K. Garg, V.J. Francis for the Appellant.
Dr. Y.S. Chitale, K. Rajendra Choudhary and
S. Srinivasan for Respondents.
A.V. Rangam and Mrs, Sarla Chandra for
Respondent No. 5.
The following Judgment of the Court was
delivered by BALAKRISHNA ERADI, J. At the conclusion of the hearing of this
appeal arising out of an election petition filed under Sections 80 to 83, 98,
100(1) (d) (iii) and (iv) and Section 101 of the Representation of People Act,
1951 we passed the following order announcing the decision arrived at by us:
"The appeal is dismissed with no order
as to costs. All interim orders passed by this Court are vacated.
Reasons will follow." We now proceed to
state the reasons in support of the aforesaid conclusion.
In the General Elections to the Tamil Nadu
Assembly held in May 1980, the Appellant had contested for the Ilayangudi
Assembly Constituency seat, and the 1st Respondent was a rival candidate
sponsored by the Communist Party of India. Respondents 2, 3 and 4 had also
stood for election in the same constituency as independent candidates.
The polling took place on the 28th of May
1980. The counting of votes was commenced at 10.000 a.m. on the 1st of June
1980 and at 5.00 p.m. after the postal ballot votes were also counted, the
result of the election was announced by the Returning Officer, declaring that
the appellant was duly elected on the ground that he had secured the highest
number of votes among the contesting candidates. According to the results of
the counting as announced, the appellant had secured 34, 437 votes and the 1st
respondent had polled 34, 381 votes. The other three candidates secured only a
very small number of votes and had forfeited their deposits.
Thus, it was only by a 107 narrow margin of
56 votes that the appellant was declared to have won the election.
The validity of the election was challenged
by the 1st respondent by filing the election petition before the High Court of
Madras praying for an order for the scrutiny and recounting of all the ballot
papers cast in the election to the Ilayangudi Assembly Constituency held on
28.5.80 and for a declaration that the election of the appellant to that
constituency was void and that the 1st respondent had been duly elected in
respect of that constituency. The main grounds urged in support of the prayer
for setting aside the election of the appellant were three-fold, viz., (1)
improper rejection by the Returning Officer of valid votes cast in favour of
the 1st respondent; (2) improper reception of invalid votes cast in favour of
the appellant; and (3) improper treatment of valid votes cast in favour of the
first respondent and the 3rd respondent as votes cast in favour of the
appellant. A further ground was also taken in the petition that the procedure
adopted by the Returning Officer in the counting of votes and the declaration
of the result of the election was not in accordance with the provisions of the
Representation of the People Act (hereinafter called the Act), the rules and
the instructions issued in that regard.
After a detailed discussion of the evidence
adduced in the case the learned single Judge of the High Court, who tried the
election petition, found that there was no basis for the allegation made in the
petition that the procedure adopted by the Returning Officer in the counting of
votes was not in accordance with the relevant provisions of the Act, the rules
and the instructions. It was further found by the learned Judge that the
averment made in the petition that valid votes cast in favour of the 1st
respondent and the 3rd respondent had been improperly treated as votes polled
in favour of the appellant was devoid of factual foundation. However, on the issue
relating to the question whether there had been improper rejection of valid
votes cast in favour of the 1st respondent herein (petitioner in the election
petition), the learned Judge found that it was clearly established by the
evidence that the Returning Officer had erroneously and illegally rejected as
invalid ballot papers in which the marking had been done either on the
demarcation line at the bottom of the 1st respondent's column-the first
respondent's name was printed on the ballot paper as the last name immediately
beneath the said name was the demarcation line at the bottom-or partially on
the demarcation 108 line and partially in the column of the 1st respondent. The
difference in votes between the appellant and the 1st respondent being only 56,
the learned Judge held that there should be a rescrutiny of the rejected votes
and a recount in the light of such scrutiny should be undertaken. The total
number of votes rejected on different counts was 751.
The 1st respondent deposed in his evidence
that there were as many as about 300 votes cast in his favour in which the
marking was partially on the demarcation line and partially in the column where
his name was printed and they had all been rejected. The Returning Officer, in
his testimony, as RW 2, admitted that he had treated such ballot papers as
invalid but asserted that the total number of ballot papers rejected on the
said ground was only 127. The learned single Judge was of opinion that even if
the version of RW 2 regarding the number of ballot papers rejected on the
aforesaid ground was to be accepted as correct, the Returning Officer had
committed a manifest illegality while counting the votes and the declaration of
the result made on the basis of such defective counting had to set aside.
Accordingly, the High Court directed a
re-scrutiny and a recount of all the rejected votes to be carried out in the
premises of the High Court. The learned Judge appointed one of Assistant
Registrars of the High Court was Presiding Officer to supervise the recounting.
The Chief Electoral Officer was directed to cause the production of all the
rejected votes in respect of the Ilayangudi Assembly constituency at the
election held on 28.5.1980. A direction was also issued to the Returning
Officer-5th respondent -to render all necessary assistance to enable the
re-scrutiny and recounting to be properly carried out by the Assistant
Registrar as presiding officer. It is against the said decision of the High
Court that this appeal by special leave has been preferred.
The Returning Officer, in the testimony given
by him as RW2, has admitted in categorical terms that he had rejected as
invalid ballot papers where the marking was partially in the column of the
candidate and partially in the shaded area and also those where the marking was
partially in the candidate's column and partially on the dividing line in the
bottom. His explanation was that in doing so he had strictly followed the
instructions constrained in the booklet P3, entitled "Instructions to
counting staff" issued in Tamil language by the Chief Electoral Officer of
Tamil Nadu in connection with the elections to the Tamil Nadu Legislative
Assembly, 1980.
Rule 39(2) (b) of the Conduct of Election
Rules 1961 requires an elector to make a mark on the ballot paper with the
instrument 109 supplied for the purpose "on or near the symbol of the
candidate for whom he intends to vote". Rule 56(2) directs the Returning
Officer to reject a ballot paper "(a)..................... or (b) if it
bears no mark at all to indicate the vote, or it bears a mark elsewhere than on
or near the symbol of one of the candidates on the face of the ballot paper or,
it bears a mark made otherwise than with the instrument supplied for the
purpose, or (c)........................, or (d) if the mark indicating the vote
thereon is placed in such a manner as to make it doubtful to which candidate
the vote has been given." The essence of the principle incorporated in the
rule is that so long as the ballot paper bears a mark made with the instrument
supplied for the purpose, the ballot paper shall not be rejected as invalid, if
it is reasonably possible to gather a definite indication from the marking as
to the identity of the candidate in favour of whom the vote had been given. In
this context it is necessary to remember that nearly 90% of the electorate in
this country consists of illiterate and uneducated rural folk totally
unacquainted with the intricacies of the rules and technicalities of procedure
pertaining to elections. Even if the best of endeavour is made to explain to
them such complicated rules and procedures they may not be capable of grasping
and fully understanding all the implications and actually carrying them into
effect while exercising their franchise. If the right conferred on the people
to choose their representatives to the State Legislatures and the Parliament
through the process of free and fair elections is to be meaningful the will of
the illiterate and unsophisticated voter expressed through a marking on the
ballot paper which though not strictly inside that column of the particular
candidate is clearly indicative of the identity of the candidate for whom the
vote is cast has to be respected and given its full effect. It is gratifying to
note that the Election Commission has manifested due awareness of this stark
reality while issuing instructions to the Returning Officers regarding the
principles to be adopted for rejection of ballot papers in the "Handbook
for Returning Officers" published by the Commission in 1982. At page 90 of
the book, the Returning Officers have been instructed to reject a ballot paper
only- (i) when there is no mark at all on the front or the mark is made
otherwise than with the instrument supplied for the purpose;
(ii) when the mark is in blank area, that is
to say, at the back or entirely in the shaded area; or 110 (iii)when there are
marks against two or more candidates;
(iv) When there is any writing or mark by
which the voter can be identified; or (v) when the ballot paper is mutilated
beyond recognition; or (vi) when the ballot paper is not genuine or it is
spurious.
The Election Commission has also issued a
"Handbook for candidates" for election to the House of the People,
Legislative Assemblies of States and Union Territories, etc.
At page 78 of the book, it is specifically
stated that the Returning Officer will not reject any ballot paper simply
because the mark is only partially within the column of one candidate and the
rest of the mark is in the blank area. It has also clarified that a ballot
paper shall not be rejected merely on the ground that the mark indicating and
vote is indistinct or made more than once, if the intention that the vote is
for a particular candidate clearly appears from the way the paper is marked.
The matter has been further clarified in a pamphlet issued by the Election
Commission of India in 1982 entitled" A Pamphlet showing illustrative
cases of valid and invalid postal and ordinary ballot papers". The
illustration at page 17 of the pamphlet depicts a case where the mark affixed
on the ballot paper is partially in the column of the candidate No. 1, the rest
of it being in the shaded area and it is clearly directed that in such cases
the ballot paper should be treated as containing a valid vote in favour of
Candidate No. 1. The Chief Electoral Officer of Tamil Nadu had issued a similar
pamphlet containing instructions in Tamil to the counting staff purporting to
be in terms identical with those contained in the Handbook and the pamphlet
issued by the Election Commission of India, Ex.P3 marked in this case is the
pamphlet so issued in Tamil by the Chief Officer, Tamil Nadu. Ex.P3 contains
illustrative cases of valid and invalid postal and ordinary ballot papers and
in publishing it, the obvious intention was to have the illustrations on
indentical lines as those found in corresponding pamphlet issued by the
Election Commission of India. Unfortunately, however, in the illustration of
invalid ballot papers appearing at page 40 of the Book (Ex.P3), the major
portion of the marking is in the shaded area and a small portion of the mark is
in the column of the candidate. Apparently what was intended to be printed was
an illustration 111 showing a a ballot paper in which the whole of the marking
was in the shaded area only without any portion of it being in the column of
the candidate. The illustration as printed in the pamphlet obviously conveys
the erroneous impression that a ballot paper where the marking is partly in the
column of the candidate and partly in the shaded area is to be rejected by the
Returning Officer as invalid. This is directly contrary to the intendment of
the relevant rule and also the express wording of the instructions issued by
the Election Commission.
In the case before us, the Returning officer
was obviously misled by the aforesaid illustration contained in the pamphlet,
Ex.P.3 and that was the sole reason why he was rejected as invalid the ballot
papers where the marking was contained partly in the column of the first
respondent and partly on the demarcating line or shaded area. Had the Returning
Officer taken the trouble to study the instructions contained the
"Handbook for the candidates" and the "Handbook for the
Returning Officers" it should have been apparent to him that the illustration
aforementioned contained in Ex. P3 did not correctly reflect the position laid
down in the rules and instructions. It follows that the High Court was
perfectly right in holding that the counting and declaration of the results in
the instant case were vitiated by serious illegality and in directing a re-
scrutiny and recounting of all the rejected votes. The appeal is, therefore,
devoid of merits.
Before we part with the case, we consider it
necessary to observe that in order to avoid a recurrence of such unfortunate instances
illegal rejection of votes on the basis of the misleading illustration
contained in the pamphlet, Ex. P3, it is essential that immediate action should
be taken by the Chief Electoral Officer, Tamil Nadu, to withdraw the said
pamphlet from circulation and to substitute it by issuing a fresh pamphlet
containing illustration correctly reflecting the legal position under relevant
rules and instructions relating to the scrutiny, acceptance of rejection of
ballot papers.
The Registrar will forward copies of this
judgment to the Election Commission of India and to the Chief Electoral
Officer, Tamil Nadu, for necessary early action being taken in the light of our
foregoing observations, S.R. Appeal dismissed.
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