A. C. Jose Vs. Sivan Pillai & Ors
[1984] INSC 53 (5 March 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) MISRA RANGNATH
CITATION: 1984 AIR 921 1984 SCR (3) 74 1984
SCC (2) 656 1984 SCALE (1)454
CITATOR INFO :
R 1986 SC 111 (16)
ACT:
Constitution of India 1950, Articles 324, 327
and 329.
The Representation of the People Act 1951,
Section 59.
The Conduct of Election Rules 1961. Rule 49
Elections- Voting-Casting of ballots by use of 'electronic' machine- Whether
valid and legal.
Words and Phrases: "Ballot"-Meaning
of.
HEADNOTE:
The first respondent was elected to the State
Legislative Assembly. Voting in the Constituency was by the conventional method
provided in the Conduct of Election Rules 1961. the votes cast manually; and
also by the mechanical process, viz., the use of 'electronic' machines.
The appellant challenged the election of the
first respondent. The trial court upheld the validity of voting by machines and
held that the first respondent was duly elected.
In appeal to this Court, it was contended on
behalf of the appellant that voting by mechanical process was not permissible
either under the Representation of the People Act 1951, or under the Conduct of
Election Rules 1961.
Allowing the appeal,
HELD: 1. The order of the Election Commission
directing casting of ballots by machines in some of the polling stations, was
without jurisdiction and could not have been resorted to. [90G]
2. When the Representation of the People Act
1951 and the Conduct of Election Rules 1961, prescribed a particular method of
voting the Commission could-not innovate a new method and contend that use of
the mechanical process was not covered by the existing law and, therefore, did
not come in conflict with the law in the field. The Act and the Rules
completely excluded the mechanical process which, if resorted to, would defeat
in a large measure the mandatory requirements of the Rules. [86G, 88F] 75
3. (a) When there is no Parliamentary
legislation or rule made under the said legislation, the Commission is free to
pass any orders in respect of the Conduct of elections.
[86 H] (b) Where there is an Act and there
are express Rules made there under, it is not open to the Commission is over-
ride the Act or the Rules and pass orders in direct disobedience to the mandate
contained in the Act or the Rules. The Powers of the Commission are meant to
supplement rather than supplant the law (both statute and Rules) in the matter
of superintendence, direction and Control as provided by Article 324. [87A-B]
(c) Where the Act or the Rules are silent, the Commission has no doubt plenary
powers under Article 324 to give any direction in respect of the conduct of
election.
[87C] (d) Where a particular direction by the
Commission is submitted to the government for approval, as required by the
Rules, it is not open to the Commission to go ahead with implementation of it
at its own sweet will even if the approval of the Government is not given.
[87D]
4. It is a well-settled rule of
interpretation of statutes that words, phrases or sentences of a statute should
ordinarily be understood in their natural, ordinary, popular and grammatical
sense unless such a construction leads to absurdity. [88G]
5. Legislatures must be deemed to be aware of
the modern tendencies in various democratic countries of the world where the
mechanical system has been introduced and if despite the plain meaning of the
word 'ballot' they did not choose to extend the definition given as far back as
1950, it may be safely presumed that Parliament intended to use the word
'ballot' in its popular rather than a technical sense. [89G]
6. The word 'ballot' has been derived from
the word 'ballot' which existed at a time when there was no question of any
system of voting by machine. Even in 1951 when the Act was passed or the Rules
were made, the system of voting by machine was not in vogue in this country. In
these circumstances the word 'ballot' in its strict sense would not include
voting by the use of voting machines. [89F] Sadiq Ali & Anr. v. Election
Commission of India & Ors.,[1972] 2 S.C.R. 318; Mohinder Singh Gill &
Anr. v. The Chief Election Commissioner, New Delhi & Ors., [1978] 2 S.C.R.
272 and N P: Ponnuswami v. Returning Officer, Namakkal Constituency & Ors.,
[1952] S.C.R. 218; referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 3839 of 1982.
From the Judgment and order dated the 12th
October, 1982 of the Kerala High Court in Election Petition No. 1 of 1982.
K.K. Venugopal, G. Vishwanatha Iyer and
E.M.S. Anam for the Appellant.
76 Ram Jethamalani, M.M. Abdul Khader, Dileep
Pillai and M.A. Firoz for Respondent No. 1.
K.G. Bhagat, Addls, Sol. General and Miss A.
Subhashini for Union.
S.S. Ray, A.K Sen and Miss A. Subhashini for
the Election Commissioner.
Ram Jethamalani and Miss Rani Jethmalani for
the Intervener.
The Judgment of the Court was delivered by
FAZAL ALI, J. This election appeal has been filed by the appellant, who was a
candidate for election to "No. 70 Parur Assembly Constituency" in
Kerala but was not elected.
Six candidates contested the said election
which was held on May 19, 1982, out of whom the first respondent (Sivan
Pillai), who was a candidate of the Communist Party of India, and the appellant
were the two principal contestants.
The result of the election was announced on
May 20,1982 in which the first respondent was declared elected having secured
30450 votes as against 30327 votes secured by the appellant. Thus, the first
respondent secured 123 more votes than the appellant. Of the 30450 votes, 11268
were cast manually, according to the conventional method provided in the
Conduct of Election Rules, 1961 (for short, to be referred to as the 'Rules')
made under the Representation of the People Act, 1951 (hereinafter to be
referred to as the 'Act'), and 19182 votes were cast by means of electronic
machines (for short, to be referred to as 'voting machines'). This was done in
pursuance of the direction issued by the Election Commission of India (for
facility, to be referred to as the 'Commission') by virtue of a notification
published in the Kerala Gazette on 13.5.82. The said notification was purported
to have been made under Art.
324 of the Constitution of India, and has
been extracted on pages 3 to 5 of the judgment of the High Court and it is not
necessary for us to repeat the same having regard to the point of law that we
have to decide in the instant case.
It may be mentioned that prior to issuing the
notification the commission had sought the sanction of the Government of India
which was however refused. As mentioned above, the votes 77 by the mechanical
process were cast in 50 out of the 85 polling stations.
The trial Court upheld the validity of voting
by machine and held that the respondent was duly elected to the Assembly seat.
Hence, this appeal by the appellant.
Art. 324 of the Constitution gives full
powers to the Commission in matters of Superintendence, direction and control
of the preparation of electoral rolls and also for the conduct of elections to
the Parliament and State Legislatures. It was argued that the Commission being
a creature of the Constitution itself, its plenary powers flowing directly from
Art. 324 will prevail over any Act passed by the Parliament or Rules made
thereunder. In order to buttress this argument, it was contended that the
manner of voting was a matter coming within the ambit of Arts. 324 and 327
which empowered the Parliament to make laws in respect of matters relating to
or in connection with the elections to the Parliament or the State Legislatures
and would be deemed to be subsidiary to the power contained in Art. 324 and if
there was any conflict between a law enacted by the Parliament and the powers
given to the Commission regarding regulating the conduct of elections to
Parliament that law must yield to Art. 324, otherwise the very object of Art.
324 would be defeated. Notice was given by this Court both to the Union of
India as also the Commission though in terms of s. 82 of the Act they are not
necessary parties and were not before the High Court.
This is a very attractive argument but on a
closer scrutiny and deeper deliberation on this aspect of the matter, it is not
possible to read into Art. 324 such a wide and uncanalised power, which is
entrusted to the Commission as Mr. Jethmalani would have us believe. Part XV of
the Constitution contains Arts. 324 to 328 which relate to the manner in which
elections are to be held, the rights of persons who are entitled to vote,
preparation of electoral rolls, delimitation of constituencies, etc., but this
is merely the storehouse of the powers and the actual exercise of these powers
is left to Parliament under Arts. 325 to 329. In other words, Art. 324 has to
be read in harmony with, and not in isolation of Arts. 326 to 329. Art. 324 may
be extracted thus:
"324. Superintendence, direction and
control of elections to be vested in an Election Commission.
78 (1) The superintendence, direction and
control of the preparation of the electoral rolls for, and the conduct of all
elections to Parliament and to the Legislature of every State and of elections
to the offices of President and Vice-President held under this Constitution
shall be vested in a Commission (referred to in this Constitution as the
Election Commission).
(2) The Election Commission shall consist of
the Chief Election Commissioner and such number of other Election
Commissioners, if any, as the President may from time to time fix and the
appointment of the Chief Election Commissioner and other Election Commissioners
shall, subject to the provisions of any law made in that behalf by Parliament,
be made by the President.
(3) When any other Election Commissioner is
so appointed the Chief Election Commissioner shall act as the Chairman of the
Election Commission.
(4) Before each general election to the House
of the People and to the Legislative Assembly of each State, and before the
first general election and thereafter before each biennial election to the
Legislative Council of each State having such Council, the President may also
appoint after consultation with the Election Commission such Regional
Commissioners as he may consider necessary to assist the Election Commission in
the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made
by Parliament, the conditions of service and tenure of office of the Election
Commissioners and the Regional Commissioners shall be such as the President may
by rule determine:
Provided that the Chief Election Commissioner
shall not be removed from his office except in like manner and on the like
grounds as a Judge of the Supreme Court and the conditions of service of the
Chief Election Commissioner shall not be varied to his disadvantage after his
appointment.
Provided further that any other Election
Commissioner or a Regional Commissioner shall not be removed from 79 office
except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a
State, shall when so requested by the Election Commission, make available to
the Election Commission or to a Regional Commissioner such staff as may be
necessary for the discharge of the functions conferred on the Election
Commission by clause (1)." While interpreting a constitutional provision
we must remember the memorable words of Chief Justice Marshall:
"We must never forget that it is the
Constitution which we are expounding." Another golden rule laid down by
this Court on the interpretation of statutes is that we should so interpret the
language of a Statute as to suppress the mischief and advance the object. It is
true that Art. 324 does authorise the Commission to exercise powers of
superintendence, direction and control of preparation of electoral rolls and
the conduct of elections to Parliament and State legislatures but then the
Article has to be read harmoniously with the Articles that follow and the
powers that are given to the Legislatures under entry No. 72 in the Union List
and entry No. 37 of the State List of the Seventh Schedule to the Constitution.
The Commission in the garb of passing orders for regulating the conduct of
elections cannot take upon itself a purely legislative activity which has been
reserved under the scheme of the Constitution only to Parliament and the State
legislatures. By no standards can it be said that the Commission is a third
Chamber in the legislative process within the scheme of the Constitution.
Merely being a creature of the Constitution
will not give it plenary and absolute power to legislate as it likes without
reference to the law enacted by the legislatures.
It was further argued that this power was
necessary in order to make the Commission an independent body and in this
connection our attention was drawn to a speech of Dr. Ambedkar in the
Constituent Assembly when the question of making the Election Commission an
independent body was being debated, At page 905, Constituent Assembly Debates
(Vol.8), Dr. Ambedkar observed thus:
80 "But the House affirmed without any
kind of dissent that in the interests of purity and freedom of elections to the
legislative bodies, it was of the utmost importance that they should be freed
from any kind of interference from the executive of the day. In pursuance of
the decision of the House, the Drafting Committee removed this question from
the category of Fundamental Rights and put it in a separate part containing
Articles 289, 290 and so on, Therefore, so far as the fundamental question is
concerned that the election machinery should be outside the control of the
executive Government, there has been no dispute. What article 289 does is to
carry out that part of the decision of the Constituent Assembly. It transfers
the superintendence, direction and control of the preparation of the electoral
rolls and of all elections to Parliament and the Legislatures of States to a
body outside the executive to be called the Election Commission." These
observations merely show that the intention of the founding fathers of our
Constitution was to make the Commission a separate and independent body so that
the election machinery may be outside the control of the executive Government.
What Dr. Ambedkar, or for that matter the founding fathers, intended was that
the superintendence, direction and control of the preparation of electoral
rolls and of all elections to Parliament and State Legislatures should be left
to the Election Commission. This object has been fully carried out by the
provisions in Arts. 324 to 329. Neither the observations of Dr. Ambedkar nor
the provisions of the Constitution could ever have intended to make the
Commission an apex body in respect of matters relating to elections, conferring
on it legislative powers ignoring the Parliament altogether.
Mr. Asoke Sen, appearing for the Commission,
speaking in the same strain as Mr. Jethmalani, contended that Art.
324 was a Code in itself and was couched in a
very plain and simple language which admits of no ambiguity and, if so
construed, it gives full powers and authority to the Commission to give any
direction in connection with the conduct of elections. It was further submitted
that if this interpretation is not given then Arts. 325 to 329 would amount to
defeating the very object which was sought to be achieved by Art. 324.
Supporting argument was built up by Mr. Sen by heavily relying upon the opening
words in Art.
327 to 81 the effect: "subject to the
provisions of this Constitution" and absence of any such rider in Art.
324. For the reasons which we will give hereafter, it is not possible for us to
accept the somewhat far-fetched argument of the learned counsel.
Reliance was placed on a decision of this
Court in Sadiq Ali and Anr. v. Election Commission of India and Ors.
where the Court observed thus:
"Art. 324 of the Constitution provides
inter alia that the superintendence, direction and control of the preparation
of electoral rolls for and the conduct of all elections to Parliament and
Legislative Assemblies of the States and all elections to the offices of
President and Vice-President held under the Constitution shall be vested in the
Commission Without prejudice to the generality of the foregoing power,
sub-section (2) enumerates some of the matters for which provision may be made
in the rules.
Sub-section (3) requires that the rules
framed should be laid before each House of Parliament. Conduct of Election
Rules, 1961 were thereafter framed by the Central Government. Rules 5 of those
Rules requires the Commission to specify the symbols that may be chosen by
candidates at elections in Parliamentary and Assembly elections and the
restrictions to which that choice shall be subject. Rule 10 makes provision for
allotment of symbols to the contesting candidates by the Returning officer
subject to general or special directions issued by the Commission." The
first part of the above observations merely repeats the language of Art. 324
but the second part clearly shows that the power under Art. 324 is conditioned
by the Rules made by the Central Government for the conduct of all elections.
These observations, therefore, do not appear to us to be of any assistance to
the stand taken by the appellant.
Reliance was also placed on the following
observations in the said case:
"Question then arises as to what is the
binding nature of the decision given by the Commission under paragraph 15 In
this respect, it has to be borne in mind that the Commission only decides the
question as to whether any of the 82 rival sections or groups of a recognised
political party, each of whom claims to be that party, is that party. The claim
made in this respect is only for the purpose of symbols in connection with the
elections to the Parliament and State Legislatures and the decision of the
Commission pertains to this limited matter." (Emphasis ours) These
observations also do not advance the matter any further because it was clearly held
that the claim made in respect of symbols pertained only to the limited matter
which was being considered by the Commission. The following observations of
this Court in that case completely clinch the issue against the appellant:
"It would follow from what has been
discussed earlier in this judgment that the Symbols order makes detailed
provisions for the reservation, choice and allotment of symbols and the
recognition of political parties in connection therewith. That the Commission
should specify symbols for elections in Parliamentary and assembly
constituencies has also been made obligatory by rule 5 of Conduct of Election
Rules." (Emphasis supplied) Thus, it is manifestly apparent from this
decision that the rule-making power of the Commission under the Act, with
respect to symbols, would have to prevail over any order that it may pass and
the words "conduct of elections" would not make the Commission a
purely legislative body.
Another case on which great reliance was
placed is:
Mohinder Singh Gill and Anr. v. The Chief
Election Commissioner, New Delhi and Ors. In this case, it was held that an
order passed by a statutory functionary on certain specific grounds cannot be
supplemented by external evidence like affidavits or otherwise. This case also
nowhere lays down that the Commission possesses plenary powers-both executive
and legislative-in the guise of conduct of elections. One of the main questions
posed by Krishna Iyer, J speaking for the Court, was as follows:
"Can the Election Commission, clothed
with the comprehensive functions under Article 324 of the Constitution, cancel
the whole poll of a constituency after it has been 83 held, but before the
formal declaration of the result has been made, and direct a fresh poll without
reference to the guidelines under ss. 58 and 64(a) of the Act, or other legal
prescription or legislative backing. If such plenary power exists, is it
exercisable on the basis of his inscrutable 'subjective satisfaction' or only
on a reviewable objective assessment reached on the basis of circumstances
vitiating a free and fair election and warranting the stoppage of declaration
of the result and directions of a fresh poll not merely of particular polling
stations but of the total constituency?" The learned Judge while answering
the question observed thus:
"Article 324, which we have set out
earlier, is a plenary provision vesting the whole responsibility for national
and State elections and, therefore, the necessary powers to discharge that
function. It is true that Art. 324 has to be read in the light of the
constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to
the extent he insists that if competent legislation is enacted as visualized in
Article 327 the Commission cannot make himself free from the enacted
prescriptions. And the supremacy of valid law over the Commission argues
itself. No one is an imperium in imperio in our constitutional order. It is
reasonable to hold that the Commissioner cannot defy the law armed by Art. 324.
Likewise, his functions are subject to the norms of fairness and he cannot act
arbitrarily. Unchecked power is alien to our system..
Article 324, in our view, operates in areas
left unoccupied by legislation and the words 'superintendence, direction and
control' as well as 'conduct' of all elections' are the broadest terms."
(Emphasis ours) The observations, extracted above, furnish a complete answer to
the arguments of Mr. Jethmalani and Mr. Asoke Sen as it has been clearly held
that Art. 324 would operate only in areas left unoccupied by legislation, even
if the widest possible connotation is given to the language of Art. 324.
While summarizing the propositions, the Court
made the following observations:.
"Two limitations at least are laid on
its plenary 84 character in the exercise thereof. Firstly, when Parliament or
any State Legislature has made valid law relating to or in connection with
elections, the Commission shall act in conformity with, not in violation of
such provision but where such law is silent Art. 324 is a reservoir of power to
act for the avowed purpose of, not divorced from pushing forward a free and
fair election with expedition. Secondly, the Commission shall be responsible to
the rule of law, act bona fide and be amenable to the norms of natural justice
in so far as conformance to such canons can reasonably and realistically be
required of it as fairplay-in-action in a most important area of the
constitutional order, viz., elections." (Emphasis ours) This is actually
the main spirit and gist of the decision which appears to have been relied upon
by the appellant but which does not at all support his stand. In the aforesaid
case, there did not appear to be any conflict between the order passed by the
Commission and the Act or the Rules. The question at issue in the instant case
did not really arise in the form and shape as has been presented before us. On
the other hand, the matter seems to have been fully settled by an earlier
decision of this Court in N.P.
Ponnuswami v. Returning officer, Namakkal Constituency
and ors. where Fazal Ali, J. (as he then was) while making a very pointed and
crisp approach, scientifically analysed the position thus:
"Broadly speaking, before an election
machinery can be brought into operation, there are three requisites which
require to be attended to, namely, (1) there should be a set of laws and rules
making provisions with respect to all matters relating to, or in connection
with, elections, and it should be decided as to how these laws and rules are to
be made; (2) there should be an executive charged with the duty of securing the
due conduct of elections; and (3) there should be a judicial tribunal to deal
with disputes arising out of or in connection with elections.
Articles 327 and 328 deal with the first of
these requisites, Art. 324 with the second and article 329 with the third
requisite. The other two articles in Part XV, viz., articles 325 and 326, deal
with two 85 matters of principle to which the Constitution-framers have
attached much importance. They are:-(1) prohibition against discrimination in
the preparation of, or eligibility for inclusion in, the electoral rolls, on
grounds of religion race, caste, sex or any of them; and (2) adult suffrage.
Part XV of the Constitution is really a code in itself providing the entire
ground-work for enacting appropriate laws and setting up suitable machinery for
the conduct of elections." We fully endorse and follow the above
observations of the Constitution Bench which lay down the correct law on the
subject and we have nothing further to add to the approach made by this Court
in the case referred to above. On the other hand, our view that Arts. 324 to
329 have to be construed harmoniously flows as a logical corollary from the
ratio in Ponnuswami's case.
The pointed an pungent observations extracted
above, really amount to a Bible of the election law as culled out from an
interpretation of the provisions of Arts. 324 to 329 of the Constitution, and
were referred to with approval even in Mohinder Singh Gill's case (supra).
During the last three decades this case has neither been distinguished nor
dissented from and still holds the field and with due respect, very rightly. No
other case ever made such a dynamic and clear approach to the problem, perhaps
due to the fact that no such occasion arose because the Commission has always
been following the provisions of the Act and the Rules and had never attempted
to arrogate to itself powers which were not meant to belong to it. Indeed, if
we were to accept the contention of the respondents it would convert the
Commission into an absolute despot in the field of election so as to give
directions regarding the mode and manner of elections by passing the provisions
of the Act, and the Rules purporting to exercise powers under cover of Art,
324. If the Commission is armed with such unlimited and arbitrary powers and if
it ever happens that the persons manning the commission shares or is wedded to
a particular ideology, he could by giving odd directions cause a political
havoc or bring about a constitutional crisis, setting at naught the integrity
and independence of electoral process, so important and indispensable to the
democratic system.
Further, such an absolute and uncanalised
power given to the Commission without providing any guidelines would itself
destroy the basic structure of the Rule of Law. It is manifest 86 that such a
disastrous consequence could never have been contemplated by the Constitution
makers, for such an interpretation, as suggested by the counsel for the respondent,
would be far from attaining the goal of purity and sanctity of the electoral
process. Hence, we must construe Arts. 324 to 329 as an integral part of the
same scheme collaborating rather than colliding with one another.
Moreover, a perusal of Arts. 324 to 329 would
reveal that the legislative powers in respect of matters relating to Parliament
or the State Legislatures vests in Parliament and in no other body. The
Commission would come into the picture only if no provision has been made by
Parliament in regard to the elections to the Parliament or State Legislatures.
Furthermore, the power under Art. 324
relating to superintendence, direction and control was actually vesting of
merely all the executive powers and not the legislative powers. In other words,
the legislative power of Parliament or of the legislature of a State being made
subject to Art.
324 only means that no law made by Parliament
under Art. 327 or by a State legislature under Art. 328 can take away or
deprive the Commission of the executive power in regard to matters entrusted to
it, viz. superintendence, direction and control of elections. The right to file
an election petition directly flows from Art. 329 and cannot be affected in any
manner by the exercise of executive power by the Commission under Art. 324.
In view of the above, it is not necessary for
us to consider a number of other authorities that were cited before us as they
do not appear to be directly on point.
It is pertinent to indicate that the High
Court fell into an obvious fallacy by acceptance of the position that the
direction of the Commission was intended to operate in an uncovered field. When
the Act and the Rules, prescribed a particular method of voting, the Commission
could not innovate a new method and contend that use of the mechanical process
was not covered by the existing law and, therefore, did not come in conflict
with the law in the field.
To sum up, therefore, the legal and
constitutional position is as follows:
(a) When there is no Parliamentary legislation
or rule made under the said legislation, the Commission is free to pass any
orders in respect of the conduct of elections.
87 (b) where there is an Act and express
Rules made there under it is not open to the Commission to override the Act or
the Rules and pass orders in direct disobedience to the mandate contained in
the Act or the Rules. In other words, the powers of the Commission are meant to
supplement rather than supplant the law (both statute and Rules) in the matter
of superintendence, direction and control as provided by Art. 324, (c) where
the Act or the Rules are silent, the Commission has no doubt plenary powers
under Art.
324 to give any direction in respect of the
conduct of election, and (d) where a particular direction by the Commission is
submitted to the government for approval, as required by the Rules, it is not
open to the Commission to go ahead with implementation of it at its own sweet
will even if the approval of the Government is not given.
Apart from the arguments referred to above,
an alternative argument put forward before us was that even the Rules framed
under the Act authorise the Commission to give direction to hold voting by the
use of a voting machine and this is covered by s. 59 of the Act and Rule 49 of
the Rules. This argument merits serious consideration. In the instant case, the
main grievance of appellant is that the voting by mechanical process was not
permissible either under the Act or under the Rules. Reliance was, however,
placed by the appellant on s.59 of the Act which runs thus:
"59. Manner of voting at elections- At
every election where a poll is taken votes shall be given by ballot in such
manner as may be prescribed, and no votes shall be received by proxy." It
is obvious that s. 59 uses the words "ballot in such manner as may be
prescribed", which means prescribed by the Rules made under the Act. A
reference to s. 61 of the Act would show that Parliament intended use of ballot
paper only for casting of votes. This takes us to rule 49, the relevant part of
which may be extracted thus:
"49. Voting by ballot at notified
polling stations- (1) Notwithstanding anything contained in the 88 preceding
provisions of this Part, the Election Commission may, by notification published
in the official Gazette at least 15 days before the date, or the first of the
dates, of poll appointed for an election, direct that the method of voting by
ballot shall be followed in that election at such polling stations as may be
specified in the notification." It was submitted that having regard to the
modern and changing conditions of the society a dynamic approach should be made
to the interpretation of the aforesaid two legal requirements. The matter does
not rest here: something could be said for the view that the word 'ballot' includes
voting by machines. Section 59 proceeds to explain its intention in setting up
the mode, manner and method of voting by prescribing express rules as to how
the voting should be done. In this connection, reference may be made to Rule 22
which relates to the form of ballot paper and its contents.
Rule 23 requires the Returning officer to
record on the counterfoil of the ballot paper the electoral roll number of the
elector as entered in the marked copy of the electoral roll. Rule 27 refers to
the return of ballot paper after an elector has recorded his vote or made his
declaration. Rule 30, which prescribes the contents of ballot papers, is
completely contrary to the concept of ballot by machine.
Similarly, Rules 33, 38, 39 and 40 seem to be
wholly inconsistent with the mechanical process but seem to adopt the
conventional method. As we have already indicated, these Rules are binding on
the Commission and it cannot by an executive fiat either override them or act
contrary to the statutory provisions of the Rules.
On a proper and detailed analysis of these
Rules it is clear that the Act by framing the Rules completely excluded the
mechanical process which, if resorted to, would defeat in a large measure the
mandatory requirements of the Rules.
It is a well settled rule of interpretation
of statutes that words, phrase or sentences of a statute should ordinarily be
understood in their natural, ordinary, popular and grammatical sense unless
such a construction leads to absurdity. Mr. Jethmalani argued that the word
'ballot' is wide enough to include the mechanical process and, therefore, the
direction of the Commission falls squarely within the four corners of both s.
59 and Rule 49. Reliance was placed on the dictionary meaning of the word
'ballot' which has been defined in Black's Law Dictionary (Fourth Edn.) at page
182 thus:
89 "means act of voting, usually in
secret, by balls or by written or printed tickets or slips of paper; the system
of voting by balls or tickets, or by any device for casting or recording votes,
as by voting machine." In Stroud's Judicial dictionary (Third Edn.),
however, 'ballot' means "votes recorded-all ballot papers put into the
ballot boxes by the electors (p. 3239)". Stroud therefore, does not
subscribe to the view of casting of vote through a voting machine and we agree
with this view because casting of votes by machine is a mechanical process,
which has come into existence long after the Act was passed and is not
generally invoked in most of the democratic countries of the world.
Concise Oxford dictionary defines the word
'ballot' thus:
"(usu. secret) voting, small ball,
ticket or paper used in voting; votes so recorded; lot-drawing." In
Webster's Third New International Dictionary (Vol. 1) at page 168 'ballot' is
defined thus:
"to obtain a vote from (a body of
voters) (the men on the proposal), to select by ballot or by the drawing of
lots." It may be mentioned here that the word 'ballot' has been derived
from the word 'ballot' which existed at a time when there was no question of
any system of voting machine.
Even in 1951 when the Act was passed or the
Rules were made, the system of voting by machine was not in vogue in this
country. In these circumstances, therefore, we are constrained to hold that the
word 'ballot' in its strict sense would not include voting by the use of voting
machines. Legislatures must be deemed to be aware of the modern tendencies in
various democratic countries of the world where the mechanical system has been
introduced and if despite the plain meaning of the word 'ballot' they did not
choose to extend the definition given as far back as 1950, it may be safely
presumed that the Parliament intended to use the word 'ballot' in its popular
rather than a technical sense. Our view finds a good deal of support from the
circumstance that even though the system of voting by mechanical process was
submitted to the Government for approval yet the same was declined which shows
that the rule making authority was not prepared to switch over to the system of
90 voting by machines, perhaps on account of the legal bar as indicated by us.
It is rather unfortunate that the Union of
India which is a party to this case, has taken a very neutral stand by neither
supporting nor opposing the direction given by the Commission.
Having regard to these circumstances,
therefore, we are clearly of the opinion that according to the law as it stands
at present, the order of the Commission directing casting of ballot by machines
in some of the polling stations, as indicated above, was without jurisdiction
and could not have been resorted to.
It was further pointed out by the respondent
that the process of voting by machines is very useful as it eliminates a number
of drawbacks and expedites, to a great extent, the declaration of the result of
the election by eliminating the process of counting of votes from the ballot
boxes. On the other hand, the appellant has pointed out a number of defects,
some of them being of a vital nature, which would defeat the electoral process.
We would now indicate some of the apparent defects which were pointed out to us
by the counsel for the appellant after giving a demonstration of the voting
machine before us:
"The absence of a provision for
identifying the candidate for whom a void vote has been cast- (a) by
impersonating a dead voter, (b) by impersonating an absentee voter, (c) by the
genuine voter who tenders a vote after a vote has been cast in his name by an
impersonator (R. 42), (d) where a vote is void having been cast after closing
time (R. 43) (e) where the voter has cast votes in more than one booth in the
same constituency [s. 62(2)], (f) where the voter has cast two votes in two
constituencies [s. 63(3)], (g) where the voter is disqualified under s. 16 of
the Act [s. 62(4)], 91 (h) where an elector marks a ballot paper wrongly for a
candidate, he loses the right to get a fresh ballot paper for casting his vote
correctly (R.41).
The provisions of S. 100(1)(d) and more so S.
101(a) and (b) under which by excluding the void votes or votes cast as a
result of corrupt practices any other candidate can be declared duly elected as
the true representative of the constituency." On the other hand, a number
of advantages which could be obtained by using the mechanical process were
pointed out by the respondent, the sum and substance of which was that despite
some defects the electoral process would be expeditious and would cut out a
number of delays or mistakes committed at various stages. The fact, however,
remains that if the mechanical process is adopted, full and proper training
will have to be given to the voters which will take quite some time. However,
we refrain from making any comments on either the defects or advantages of
voting machines because it would be for the Legislature and the Government, if
it revises its decision at one time or the other, to give legal sanction to the
direction given by the Commission. For these reasons, it is not necessary for
us to go into the very detailed notes of arguments submitted by the parties in
respect of this aspect of the matter.
Lastly, it was argued by the counsel for the
respondents that the appellant would be estopped from challenging the
mechanical process because he did not oppose the introduction of this process
although he was present in the meeting personally or through his agent. This
argument is wholly untenable because when we are considering a constitutional
or statutory provision there can be no estoppel against a statute and whether
or not the appellant agreed or participated in the meeting which was held
before introduction of the voting machines, if such a process is not
permissible or authorised by law he cannot be estopped from challenging the
same .
For the reasons given above, we allow the
appeal, set aside the election of the respondent with respect to the 50 polling
stations where the voting machines were used and we direct a repoll to be held
in these 50 polling stations. We, however, do not touch or disturb the results
of the votes secured in the other 34 polling stations which was done in
accordance with law, viz., 92 the use of ballot papers. After the re-poll, the
result of the election would be announced afresh after taking into account the
votes already secured by the candidates, including the Respondent. We make no
order as to costs.
In course of argument, Mr. Sen for the
Commission informed us that at eleven elections held under the Act, the
mechanical device was used and in nine, no challenge has been raised. It
follows that our judgment will not affect those nine elections in any manner.
N.V.K. Appeal allowed.
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