CASE NO.: Election Petition 3 of 1992 PETITIONER: KAKA JOGINDER SINGH @ DHARTI PAKAD RESPONDENT: K.R. NARAYANAN VICE-PRESIDENT OF INDIA DATE OF JUDGMENT: 16/07/1993 BENCH: J.S. VERMA & K.J. REDDY & Y. DAYAL & G.N. RAY & S.P. BHARUCHA JUDGMENT:
JUDGMENT
1993(1) Suppl.SCR 245 = 1993 (3)Suppl.SCC 607 = 1993( 4 ) JT 163 =
1993(3) SCALE 85
The Judgment was delivered by VERMA, J.
VERMA, J. –
This election petition calls in question the election of Shri K. R.
Narayanan as the Vice-President of India. A notification dated July 17,
1992 was issued by the Returning Officer for the election of the Vice-
President of India, specifying July 31, 1992 as the last date for filing
the nominations. Petitioner Kaka Joginder Singh alias Dharti Pakad and
scrutiny held on August 1, 1992, the nomination papers of both of them,
were found to be valid by the Returning Officer. Petitioner raised
objection to the validity of the nomination papers filed by the respondent.
At the time of scrutiny, but the objections were rejected. These two
persons alone were declared to be validly nominated candidates; and the
polling was held on August 19, 1992, as a result of which the respondent,
Shri K. R. Narayanan, was declared duly elected as the Vice-President of
India. On September 17, 1992, this election petition was filed challenging
the election
2. The election of the returned candidate is challenged by the petitioner
on two grounds, namely, (i) wrong acceptance of the nomination of the
returned candidate, a ground under Section 18 (1) (c) of the Presidential
and Vice-Presidential Elections Act, 1952 (called ‘the Act’); and (ii)
commission of the offence of undue influence at the election, a ground
under Section 18 (1) (a) of the Act, by issuance of a whip by the Congress
(i) Party to vote for the respondent at the election. The material part of
Section 18, for the purpose of the present election petition, is under
“18. (1) If the Supreme Court is of opinion, –
(a) that the offence of bribery or undue influence at the election has been
committed by the returned candidate or by any person with the consent of
the returned candidate; or
(b) * * *(c) that the nomination of any candidate has been wrongly rejected
or the nomination of the successful candidate has been wrongly accepted;
the Supreme Court shall declare the election of the returned candidate to
be void
(2) For the purposes of this section, the offences of bribery and undue
influence at an election have the same meaning as in chapter IX-A of the
Indian Penal Code.”
3. The facts relevant for the aforesaid two grounds on which the election
petition has been filed are now stated. The competence of the petitioner to
file this election petition as a candidate is not in dispute. The only
question is : Whether both or any of the grounds on which the election
petition has been filed have been made out?
4. To support the ground in Section 18 (1) (c) of wrong acceptance of the
nomination of the returned candidate – The respondent, the petitioner
alleges that there was substantial defect in all the nomination papers of
the returned candidate which required their rejection in accordance with
Section 5-E (3) (e) of the Act by the Returning Officer, at the time of
scrutiny. It is alleged that there was a failure to comply with the
requirement of sub-sections (1) and (2) of Section 5-B, in as much as the
nomination papers of the returned candidate were not completed in the
prescribed form, and no nomination paper was accompanied by ‘a certified
copy of the entry relating to the candidate in the electoral roll for the
parliamentary constituency in which the candidate is registered as an
elector’. These provisions have to be read along with Rule 4 of the
Presidential and Vice-Presidential Elections Rules, 1974 (called ‘the
Rules’) and Form 3 therein which prescribes the form of the nomination
paper for election to the office of the Vice-President of India. Form 3
requires mention of the name of the parliamentary constituency in the
electoral roll for which the candidate is registered as an elector. In the
nomination papers of the respondent, the name of the parliamentary
constituency in the electoral roll for which the returned candidate is
shown to be registered as an elector is mentioned as ‘Ottapalam (SC)’. To
each of the nomination papers, to satisfy the requirement of sub-section
(2) of Section 5-B, a certificate is attached, as under
“CERTIFICATE
Certified that the name of Shri K. R. Narayanan, Kocheril House, Ward No.
VIII of Uzhavoor Panchayat, Meenachil Taluk, Kottayam District, Kerala
State is included in the voters list 1989 of 94 Palai Assembly
Constituency, Part No. 101. The true extract of which is reproduced below
Sl. No. House No. House Name Name of voter
192 61 (Kocheril) K. R. Narayanan
Name of the Guardian Sex Age as on 1-1-1989
Raman Male 68
The age of Shri K. R. Narayanan as on January 1, 1992 is 71
(Seventy-one). Certified further that voters list 1989 of which
extract has been quoted above is the latest and the current list
Taluk Office
Meenachil
Dated : 29-7-1992
sd/-
Electoral Registration
Officer and Tahsildar
Meenachil.”
5. The petitioner’s contention is, that the above certificate annexed to
each nomination paper of the returned candidate does not satisfy the
requirement of sub-section (2) of section 5-B, in as much as it is not ‘a
certified copy of the entry relating to the electoral roll’; and this
certificate shows that the returned candidate was registered as an
electoral in the electoral roll of ’94 Palai Assembly Constituency’ which
is not in ‘Ottapalam (SC)’ parliamentary constituency mentioned in the
nomination paper but in ‘Muvattupuzha’ parliamentary constituency. The
petitioner further contends that the certificate shows the ‘Name of the
Father/Mother/Guardian/Husband’. These defects, according to the
petitioner, rendered invalid all the nomination papers filed for the
candidature of the respondent, and, therefore, liable to rejection
6. The other ground taken in the election petition to challenge the
election, us of ‘undue influence’ under Section 18 (1) (a) of the Act. In
view of a strong objection on behalf of the returned candidate that there
are no requisite pleadings in the election petition to constitute the
ground under Section 18 (1) (a), it would be appropriate to quote the
entire pleadings relating to this ground, on which the petitioner has
relied for this purpose. The only pleading in the election petition
relating to the ground in Section 18 (1) (a) of the Act is in paras 10, 11
and grounds (I) and (III) in para 14 thereof, which are as under
“10. That the Returning Officer unconstitutionally, illegally accepted the
nomination papers of respondent under pressure or undue hope of profit in
future, without passing any order on the written objections
11. That the ruling party in power, competent to change the future issued
the whip in favour of returned candidate, the respondent affecting the
election is violative of the provisions of the Constitution. A copy of whip
is attached and marked as Annexure ‘D’
14. That the petitioner is approaching this Hon’ble Court on the following
amongst other
Grounds
I. That the whip Annexure ‘D’ is violative of Article 66 of the
Constitution of India in view of Anti-Defection Act as the proposers of 5
MPs of BJP were facing disciplinary action during the period of Election
hence all the political parties and their leaders made a mockery of the
Election of the Vice-President of India by proposing the returned candidate
Shri K. R. Narayanan as a representative of Scheduled Caste candidate which
is against the preamble of the Constitution of India hence it is violative
of Articles 14, 21 and 38 of the Constitution of India
III. That all sorts of undue influences by way of whip by the ruling party
and opposition parties have been used which amounts to corrupt practices in
the Election as the 80 proposers violates Article 66 of the Constitution of
India in view of Anti-Defection Act.”
7. In reply, it was contended by Shri Soli J. Sorabjee, learned counsel for
the returned candidate that no triable issue relating to the ground of
commission of the offence of undue influence contained in Section 18 (1)
(a) of the Act arises in the absence of the requisite pleadings for that
purpose; and the ground contained in Section 18 (1) (c) is not made out
since the defect, if any, in the nomination papers of the returned
candidate is not of a substantial character. On this basis it was
contended, that the Returning Officer could not reject the nomination
papers, as clearly provided in sub-section (5) of section 5-E of the Act.
Shri Sorabjee also submitted that the objection now taken in the election
petition for raising the ground under Section 18 (1) (c) of the Act was not
even raised before the Returning Officer at the time of scrutiny, the
objection taken then being merely of misdescription of the proposers and
seconders, and not submitted that the ground raised now is a clear after
thought and of no consequence since there was never any ambiguity in the
identity of the returned candidate from his description given in the
nomination papers, the only object of the particulars required in the
nomination paper being to clearly identify the candidate and to determine
his eligibility for the election. It was also submitted that such an
objection, if raised, at the time of scrutiny would have enabled correction
of the technical defect in the nomination papers of the returned candidate
can, at the most, be only a misdescription of the candidate whose identity
was clear and unambiguous and, therefore, the defect, if any, is not of a
substantial character to permit rejection of the nomination papers on that
ground. The learned Attorney General supported the submissions of Shri
Sorabjee
8. It was common ground before us that no evidence was required to be
adduced in the election petition which could be decided on admitted facts
and the documents produced by the parties, the contents of which were
admitted. The arguments of both sides were, therefore, heard on that basis
9. The ground of ‘undue influence’ contained in Section 18 (1) (a) of the
Act is taken up first for consideration. As the above quoted provision
clearly shows, to constitute the ground, the essential ingredients are :
(1) commission of the offence of undue influence at the election; and (2)
its commission by the returned candidate or by any person with the consent
of the returned candidate. Thus, the offence of undue influence at the
election, as defined in Section 171-C contained in Chapter IX-A of the
Indian Penal Code, must have been committed; and that offence must have
been committed either by the returned candidate himself or by any person
with the consent of the returned candidate. Unless both these ingredients
to constitute the ground under Section 18 (1) (a) are pleaded and proved,
this ground for declaring the election to be void cannot be made out. The
entire pleading relating to this ground in the election petition has been
quoted above. A bare perusal of the same is sufficient to indicate that at
least one of the two essential ingredients of the ground is not even
pleaded in the election petition
10. There is no averment anywhere in the election petition that the offence
of undue influence alleged to have been committed by issuance of the whip
by the Congress (I) Party was committed either by the candidate himself or
by any person with the consent of the returned candidate. There is not even
a whisper or casual assertion that the returned candidate was in any manner
associated with, involved or instrumental in issuance of the whip by the
Congress (I) Party or any other political party to its members, at the
election. The letter dated August 14, 1992 (Annexure-D to the election
petition) issued by the Chief Whip of the Congress (I) Party also nowhere
mentions any role of the returned candidate K. R. Narayanan as ‘a consensus
candidate’, obviously meaning that he was the candidate chosen by consensus
of several political parties. It may also be mentioned that the respondent
in his counter-affidavit has even without any such pleading in the election
petition, expressly denied that he had any role in the issuance of the whip
by the Congress (I) Party to its members. There is no rejoinder to this
denial. It is significant that no other candidate had been set up by any
political party and the respondent had the support of all the political
parties, being the candidate chosen by consensus of the political parties.
The petitioner, who was the only other candidate, obtained only one vote,
as stated by him at the hearing
11. The question whether even in such a situation the issuance of a whip by
a political party can amount to undue influence does not arise for decision
in the present case, on account of the absence of requisite pleadings to
raise a triable issue on the point
12. It is sufficient to refer to a recent Constitution Bench decision of
this Court in Mithilesh Kumar v. Shri R. Venkataraman to indicate that such
deficiency in pleadings in the election petition is fatal; and the ground
contained in Section 18 (I) (a) of the Act does not arise for consideration
on merits, in such a situation. In a similar situation where the ground of
undue influence contained in Section 18 (1) (a) of Act was raised by reason
of the fact that a whip had been issued by the Congress (I) Party, but
there was no allegation that any act amounting to undue influence was
committed either by the returned candidate himself or by any other with his
consent, it was held that it was unnecessary to examine whether issuance of
such a whip by any political party amounts to undue influence vitiating the
election. This aspect, with reference to the earlier decisions of this
Court, was considered at length therein and, therefore. It is unnecessary
to reiterate the same herein. Following that decision, it must be held that
the pleadings relating to the ground contained in Section 18 (1) (a) do not
disclose any cause of action to raise a triable issue on this point; and,
therefore, the election petition, in so far as it relates to the ground
contained in Section 18 (1) (a), must be rejected for this reason alone
13. The only question remaining for consideration now, is : Whether the
nomination of the returned candidate was wrongly accepted, to make out the
ground for setting aside the election under section 18 (1) (c) of the Act?
The provisions in the Act relevant for this ground are the following
“5-B. (1) On or before the date appointed under clause (a) of subsection
(1) of Section 4, each candidate shall, either in person or by any of his
proposers or seconders, between the hours of eleven o’clock in the forenoon
and three o’clock in the afternoon, deliver to the Returning Officer at the
place specified in this behalf in the public notice issued under Section 5
a nomination paper completed in the prescribed form and subscribed by the
candidate as assenting to the nomination, and
(a) in the case of Presidential election, also by at least ten electors as
proposers and at least ten electors as seconders;
(b) in the case of Vice-Presidential election, also by at least five
electors as proposers and at least five electors as seconders : Provided
that no nomination paper shall be presented to the Returning Officer on a
day which is a public holiday
(2) Each nomination paper shall be accomplished by a certified copy of the
entry relating to the candidate in the electoral roll for the parliamentary
constituency in which the candidate is registered as an elector
5-E * * *
(3) The Returning Officer shall then examine the nomination papers and
shall decide all objections which any be made to any nomination paper and
may, either on such objection or on his own motion, after such summary
inquiry, if any, as he thinks necessary, reject any nomination on any of
the following grounds :-
(e) that there has been a failure to comply with any of the provisions of
Section 5-B or Section 5-C
(5) The Returning Officer shall not reject any nomination paper on the
ground of any defect which is not of a substantial character
(8) For the purpose of this section, a certified copy of an entry in the
electoral roll for the time being in force shall be conclusive evidence of
the fact that the person referred to in that entry is an elector for that
constituency, unless it is proved that he is subject to any of the
disqualifications mentioned in Section 16 of the Representation of the
People Act, 1950.”
14. The defect in the nomination papers of the returned candidate, on which
this ground is based, has already been indicated. The undisputed fact, on
the basis of the affidavits filed by both sides, is that the respondent, K.
R. Narayanan, son of Raman was registered as an elector in the electoral
roll of ’94 Palai Assembly Constituency’ which falls within Muvattupuzha
parliamentary constituency and not Ottapalam (SC) parliamentary
constituency. There is no inaccuracy or defect in the description of the
respondent as an elector in the certificate issued by the ‘Electoral
Registration Officer and Tahsildar’, Meenachil, which was annexed to the
nomination paper when it was filed. The certificate clearly says that the
name of the respondent was included in the electoral roll of ’94 Palai
Assembly Constituency, Part No. 101′. It further contains the ‘true
extract’ of that electoral roll of 1989 and certifies it to be the extract
from the latest and current electoral roll
15. Section 5-B (2) requires that ‘a certified copy of the entry relating
to the candidate in the electoral roll for the parliamentary constituency
in which the candidate is registered as an elector’ shall accompany each
nomination paper. The contents of the certificate, so annexed to each
nomination paper, fully satisfy the requirement of ‘a certified copy of the
entry relating to the candidate in the electoral roll’ for the assembly
constituency in which the respondent was registered as an elector. The
certificate does not name the parliamentary constituency as ‘Ottapalam
(SC)’ instead of ‘Muvattupuzha’. The question is : Whether this difference
is of a substantial character to warrant rejection of the nomination paper?
16. Section 13-D of the Representation of the People Act, 1950 is in Part
II-B thereof relating to ‘Electoral Rolls for Parliamentary Constituencies’
and Section 15 is in Part iii relating to ‘Electoral Rolls for Assembly
Constituencies’, which read as under
“13-D. Electoral rolls for parliamentary constituencies – (1) The electoral
roll for every parliamentary constituency, other than a parliamentary
constituency in the State of Jammu and Kashmir or in a Union Territory not
having a Legislative Assembly, shall consist of the electoral rolls for all
the assembly constituencies comprised within that parliamentary
constituency; and it shall not be necessary to prepare or revise separately
the electoral roll for any such parliamentary constituency
15. Electoral roll for every constituency – For every constituency there
shall be an electoral roll which shall be prepared in accordance with the
provisions of this Act under the superintendence, direction and control of
the Election Commission.”
17. It is clear from the above provisions that there is no separate
electoral roll for a parliamentary constituency and the electoral roll for
the parliamentary constituency consists of the electoral rolls for all the
assembly constituencies comprised within that parliamentary constituency.
Thus, the parliamentary constituency of which ’94 Palai Assembly
Constituency’ forms a part would be the parliamentary constituency in which
the respondent was registered as an elector; and his name had to be found
in the electoral roll of the assembly constituency therein in which he was
so registered. The respondent, in the present case, was registered as an
elector in the electoral roll of ’94 Palai Assembly Constituency’ as
clearly mentioned in the certificate annexed to each nomination paper.
There was thus no ambiguity in the description of the respondent as an
elector on reading the nomination paper along with the certificate annexed
to it. The mistake, however, was in mentioning the name of the
corresponding parliamentary constituency for ’94 Palai Assembly
Constituency’ as ‘Ottapalam (SC)’ instead of ‘Muvattupuzha’ in the
nomination paper of the respondent. This mistake did not misled anyone, not
even the petitioner, which is evident from the fact that such an objection
was not taken at time of the scrutiny even by the petitioner, since there
was no doubt in the mind of anyone about the correct description of the
respondent as a candidate at the election. The other mistake pointed out
is, that the name of respondent’s father ‘Raman’ is written under the
column ‘Name of the Guardian’ when the heading of that column according to
the petitioner, should have been been ‘Name of the
Father/Mother/Guardian/Husband’. In our opinion, this can hardly be called
a defect, since the omission, if any, is in giving the full heading of that
column and not in mentioning the name of respondent’s father thereunder
18. The ultimate question is : Whether this discrepancy in describing the
parliamentary constituency corresponding to ’94 Palai Assembly
Constituency’ in which the respondent was registered as an elector, and the
deficiency in the heading of the column under which the name of
respondent’s father is written, are defects of substantial nature which
required rejection of the nomination on the ground contained in Section 5-E
(3) (e) of the Act? We do not think so
19. The decisions of a Constitution Bench of this Court in Karnail Singh v.
Election Tribunal, Hissar holding that rejection of nomination is not
permissible only for a technical defect which is not of a substantial
character, has been consistently followed. In that case, the nomination
paper did not record the name of the part of the electoral roll in which
the name of the candidate appeared but there was no difficulty in
identifying the candidate. It was held by the Election Tribunal that
rejection of nomination paper on that ground was improper. This Court
affirmed the view of the Election Tribunal and held thus
“… The only defect pointed out was that the name of the sub-division was
not stated therein, but on the evidence it was quite clear that there was
no difficulty in identifying the candidate and the candidate himself
pointed out the Returning Officer the entry of his name in the electoral
roll. The defect, in these circumstances, was a technical one and the
Tribunal was perfectly right in holding that the defect was not of a
substantial character and that the nomination paper should not have been
rejected….”
20. It is sufficient to refer to the decision in Ram Awadesh Singh v.
Sumitra Devi in which the decisions of this Court starting with Karnail
Singh are referred, indicating the object of such a provision and the
nature of a substantial defect which permits rejection of the nomination
paper. The ground taken there was of improper acceptance of nomination
paper of the returned candidate, in as much as the name of the constituency
in which the returned candidate was registered as an elector was wrongly
mentioned in the nomination paper. The earlier decisions of the Court were
referred to, and it was held that a misdescription as to the electoral roll
number of the candidate or of the proposer in the nomination paper is not
to be considered as a material defect in the nomination paper. It was also
pointed out that the Returning Officer while scrutinising the nomination
papers can permit the correction of any mistake therein, which indicates
that every mistake in filling the nomination paper is not to be treated as
substantial in nature. In our opinion, sub-section (5) of Section 5-E,
which inhibits the Returning Officer and does not permit rejection of any
nomination paper on the ground of any defect which is not of a substantial
nature, expressly provides for such a situation. We have no doubt that
rejection of any nomination paper of the respondent in the present case on
the ground alleged by the petitioner would have been an improper rejection
of the nomination paper, and in violation of Section 5-E (5) of the Act. It
is, therefore, erroneous to contend that the nomination papers of the
respondent were wrongly accepted by the Returning Officer
21. The nature of mistake or defect in the nomination papers of the
respondent, viewed from a different angle, also leads to the same
conclusion. The object of the particulars required to be filled in the
nomination paper, in accordance with sub-sections (1) and (2) of Section 5-
B of the Act read with Rule 4 and Form 3 of the Rules, is to correctly and
unambiguously identify the candidate, and to indicate that the conditions
of eligibility for being a candidate at the election are satisfied. The
Returning Officer is also required to permit correction of any
discrepancies, to remove any ambiguity or misdescription. It is, therefore,
clear that unless the defect in the nomination paper or the deficiency
therein is of a substantial character, Section 5-E (5) enjoys the Returning
Officer not to reject the nomination paper. It is, therefore, obvious that
if there be any mistake or defect in the nomination paper which is a mere
misdescription of the candidate, but the misdescription is such that it
does not misled anyone, and the identity of the candidate is not in doubt
to enable the Returning Officer to perform his duty of scrutinising the
nomination paper to find out whether the candidate has been validly
nominated, then the mistake, if any, is not a substantial character
22. The requirements for a valid nomination in sub-sections (1) and (2) of
Section 5-B are : the nomination by specified number of proposers and
seconders, assent of the candidate to the nomination, a certified copy of
the entry in the electoral roll showing the candidate to be a registered
elector, presentation of the nomination paper completed in a prescribed
form within the specified place, and fulfilment of the conditions of
eligibility as a candidate. For this purpose, correct identification of the
candidate is necessary. There is not even a remote suggestion in the
present case that there was any difficulty or doubt in identifying the
respondent as the candidate nominated by the nomination papers filed for
his candidature, due to any mistake in describing the parliamentary
constituency corresponding to ’94 Palai Assembly Constituency’ in which the
respondent was registered as an elector or showing the name of his father
‘Raman’ under the column written as ‘Name of Guardian’ instead of ‘Name of
Father/Mother/Guardian/Husband’. Even the petitioner was not misled but
these defects, and it is for this reason that no such objection was taken
by the petitioner to the nomination of the respondent even though the
petitioner did raise objection at the time of scrutiny for other reasons
23. The mistake in mentioning the name of the parliamentary constituency as
‘Ottapalam (SC)’ instead of ‘Muvattupuzha’ when the assembly constituency
in which the respondent was registered as an elector therein was correctly
described as ’94 Palai Assembly Constituency’ was at best a misnomer which
misled no one, not even the petitioner, and it was, therefore, not a defect
of substantial nature. The true test for determining whether a
misdescription is a mere misnomer or defect of substantial nature was
indicated in Davies v. Elsby Brothers Ltd., as under
“… In English law as a general principle the question is not what the
writer of the document intended or meant, but what a reasonable man reading
the document would understand it to mean; and that is the test which ought
to be applied as a general rule in cases of misnomer – Which may embrace a
number of other situations apart from misnomer on a writ, for example
mistake as to identity in the making of a contract. The test must be : How
would a reasonable person receiving the document take it? If, in all the
circumstances of the case and looking at the document as a whole, he would
say to himself : ‘Of course it must mean me, but they have got my name
wrong’, then, there is a case of mere misnomer. If, on the other hand, he
would say : ‘I cannot tell from the document itself whether they mean me or
not and I shall have to make inquiries’, then it seems to me that one is
getting beyond the realm of misnomer…”
24. Viewed in this manner also, there can be no doubt that the mistake of
defect, if any, in the nomination paper of the respondent was not of a
substantial character and, therefore, it could not be a ground to permit
rejection of the nomination paper in accordance with Section 5-E (3) (e) of
the Act. Had the defect been pointed out by anyone at the time of scrutiny,
the Returning Officer would have certainly, and rightly, permitted
correction of the same, since it was only a technical defect. However, no
one, not even the petitioner, had any such doubt. As the identity of the
respondent and his eligibility as a candidate was undisputed. For this
reason, this objection was not even raised at the time of scrutiny, but
only as an afterthought in the election petition
25. The fact, however, remains that this technical defect crept into the
nomination papers of the respondent in spite of the association of a galaxy
of men drawn from the top echelons of several political parties in the
filing of his nomination papers. The election petition does serve the
propose of revealing this discrepancy which that galaxy of men completely
missed. It is a different matter that the defect is merely technical and
not substantial in nature, so that it has no adverse consequence
26. Accordingly, the ground contained in Section 18 (1) (c) of the Act is
also not available to challenge the validity of the election of the
respondent. Consequently, the election petition is dismissed. No costs