PETITIONER:
ERA SEZHIYAN
Vs.
RESPONDENT:
T.R. BALU AND ORS.
DATE OF JUDGMENT01/03/1990
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
KULDIP SINGH (J)
CITATION:
1990 AIR 838 1990 SCR (1) 767
1990 SCC Supl. 322 JT 1990 (1) 392
1990 SCALE (1)377
ACT:
Representation of the People Act, 1951/Conduct of Elec-
tion Rules 1961: Sections 60 and 100/Rules 30, 31 37A, 39A,
56 & 70--Rajya Sabha election--Ballor paper marked with
green ink while blue ball point pen kept in voting booth for
use by voter--Voting in violation of election rules--Hence
ballot paper rightly rejected: mark not place in the column
earmarked for marking the preference but placed opposite the
name of the candidate: intention of the voter clearly indi-
cated-Hence ballotpapers rightly accepted.
HEADNOTE:
Election of six Members to the Rajya Sabha by the elect-
ed Members of the Tamil Nadu Legislature Assembly was held
in June 1986. The appellant and respondent nos. 1 to 7 were
the eight candidates in the field. Respondent Nos. 1 to 6
were declared duly elected and the appellant was declared as
having lost the election. The appellant thereupon filed an
election petition which was dismissed by the High Court.
Before this Court it was contended on behalf of the
appellant that: (1) the first preference vote in his favour
in which the first preference was marked on the ballot paper
in green ink had been wrongly rejected on the ground that it
was marked otherwise than with the article supplied for the
purpose, i.e., the ball-point pen with blue ink which had
been kept in the voting booth; and (2) the three ballot
papers indicating the first preference in favour of the
first respondent, which did not contain the figure 'I' in
the space intended for marking the said figure, had been
wrongly accepted. In support of the first contention it was
argued that: (1) the expression "article supplied for the
purpose" used in Rule 39A(2)(b) and Rule 73(2)(e) of the
Conduct of Election Rules, 1961, was misconstrued by the
High Court; (2) in the context of the election law, the
instructions contained in the hand-books, and the procedure
followed in respect of the election to Lok Sabha and State
Assemblies, the expression "article supplied for the pur-
pose" should be interpreted as meaning "actually given" or
"handed over", and as such the ball-point pen for marking
the preference should have been personally handed over to
the voter with instructions to use it for marking his pref-
erence; (3) the mistake in the present case, namely, marking
768
of the preference with green ink on the ballot paper, had
occurred because no bail-point pen was handed over to the
voter concerned; and (4) the fundamental rule of election
law is that effect should be given to the intention of the
voter and this could be done only by treating the vote as
valid.
Dismissing the appeal, this Court,
HELD: (1) There is a material difference between an
election to Lok Sabha or a Legislative Assembly which is a
direct election with one constituency for each seat and only
the vote is to be cast, and an election to Rajya Sabha which
is an indirect election with the preferential system of
voting. This difference has to be taken into account in
interpreting the relevant words used in the Rules relating
to an election. [779D-E]
(2) Rule 39A(2)(b) read with Rule 37A(2)(a) of the
Conduct of Election Rules 1961 prescribes that at an elec-
tion in a council an elector in giving his vote shall place
on his ballot paper the figure 'I' in the space opposite the
name of the candidate for whom he wishes to vote in the
first instance with the article supplied for the purpose.
Further, Rule 73 which is directly applicable to the count-
ing of votes at elections by Assembly Members, prescribes
that if on the ballot paper there is any figure marked
otherwise than with the article supplied for the purpose,
the ballot paper shall be invalid. [777H; 778A; D]
(3) The High Court was right in interpreting the expres-
sion "article supplied for the purpose" in Rule 39A(2)(b)
and Rule 73(2)(e) of the Election Rules as meaning "made
available for the purpose" or "provided for the purpose."
[778E]
Ram Utar Singh Bhaduria v. Ram Gaopal Singh & Ors.,
[1976] 1 SCR 191 distinguished.
(4) The difference in the case of an election to the
Rajya Sabha makes it wholly unnecessary that the Presiding
Officer or the Polling Officer should hand over to every
votor individually a hall-point pen to mark his vote and it
is enough if the article for marking the preference, namely,
bail-point pen, is provided to the voter to use the same for
marking his preference or if the pen is placed in such a way
as to make it clear that the marking of the preference is to
be done with that pen and instructions given to use that pen
for marking the preference. [779H; 780A-B]
(5) It is not enough for the vote to be valid that it is
possible
769
to gather the intention of the voter to vote for a particu-
lar candidate. When the law prescribes that the intention
should be expressed in a particular manner, it can be taken
into account only if it is so expressed. [777E-G]
Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors., [1955]
1 SCR 1104, refterred to.
(6) Assuming that the voter in this case had expressed
his intention clearly by marking the figure 1 in green ink,
he did so in violation of the express provisions of the
Rules which have a statutory force and hence no effect can
be given to that intention. [778D]
(7) Clause (a) of sub-rule (2) of Rule 37A only provides
that the voter 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. It is significant that
this rule does not specifically say that the figure 1 must
be placed in the column earmarked for marking the preference
but only requires that the figure 1 should be placed oppo-
site the name of the candidate. [781D-E]
(8) In the case of the three first preference votes cast
in favour of respondent No. 1 the figure 1 was clearly
marked opposite the name of respondent no. 1, being the
candidate concerned, as required by the express provision of
the said Rule 37A, and the intention of the voter was clear-
ly to cast the first preference in favour of respondent No.
1. [782E]
S. Sivaswami v. V. Malaikannan & Ors., [1984] 1 SCR 104,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1577
(NCE) of 1987.
From the Judgment and Order dated 24.4. 1987 of the
Madras High Court in Election Petition No. 1 of 1986.
Ram Jethmalani, Ms. Rani Jethmalani and M.G. Ramachan-
dran for the Appellant.
R.K. Garg, S. Padmanabhan, K. Raj. Choudhary, R. Mohan,
K. Chandrashekharan, R. Ayyam Perumal, V. Krishnamurthy, S.
Thananjayan, K.V. Vijaya Kumar, A.V. Rangam and V.R. Kari-
thi~ kayan for the Respondents.
770
The Judgment of the Court was delivered by
KANIA, J. This is an appeal from a judgment and order
delivered by a learned Single Judge of the Madras High Court
on April 24, 1987 dismissing an election petition filed by
the appellant. The appellant herein was the petitioner
before the High Court and the respondents nos. 1 to 8 herein
were arraigned as respondents in the same order in the
election petition. The dispute pertains to the election of
six Members to the Rajya Sabha by the elected Members of the
Tamil Nadu Legislative Assembly. The election was held, as
scheduled, on June 28, 1986. The appellant and respondents
nos. 1 to 7 were the eight candidates in the field, all the
nominations having been found valid. The 8th respondent was
the Returning Officer. The polling took place, as scheduled,
on June 28, 1986 and, immediately thereafter, the ballot box
was opened and the votes were sorted out. The election was
under the preferential system of voting and the particulars
of the first preferences votes cast and secured by the
candidates are as follows:
Candidates First Preference Votes 1. Appellant 33 2. 1st Respondent 35 3. 2nd Respondent 31 4. 3rd Respondent 33 5. 4th Respondent 32 6. 5th Respondent 34 7. 6th Respondent 34 8. 7th Respondent nil
Out of the 33 first preference votes cast in favour of
the appellant, one ballot paper was rejected by the 8th
respondent, the Returning Officer, on the ground that the
said ballot paper was marked by the voter otherwise than
with the article supplied for that purpose. It may be men-
tioned here that the first preference was indicated on the
said ballot paper by a ball-point pen with green ink whereas
in the ball point pen kept along with the ballot box had
blue ink. The working result sheets of the counting were
prepared and announced by the 8th
771
respondent. The particulars of the said working result
sheets are as follows:
1. Appellant 3219 2. 1st Respondent 3301 3. 2nd Respondent 3270 4. 3rd Respondent 3300 5. 4th Respondent 3301 6. 5th Respondent 3301 7. 6th Respondent 3301
In consequence, respondents nos. 1 to 6 were declared as
duly elected and the appellant was declared as having lost
the election.
It is submitted by learned counsel for the appellant,
that (1) the first preference vote in his favour in which
first preference was indicated on the ballot paper in green
ink was wrongly rejected. The rejection of the said ballot
paper by the Returning Officer was duly objected to by the
appellant at the time of counting. The said ballot paper is
hereinafter referred to as “the said rejected ballot paper”.
If the said rejected ballot paper had been received as
valid, the appellant would have the proportionate number of
preference votes and would have been declared elected.
The second contention raised by the appellant was that
three ballot papers which did not contain the figure 1 in
the space intended for marking the said figure should have
been rejected and the same were wrongly accepted. These
ballot papers had been used for casting first preference
votes in favour of the first respondent and if the same had
been rejected, first respondent would not have been elected
and in his place the appellant would have been elected. Both
the mistakes according to the appellant materially affected
the result of the election.
Before going into the controversy raised before us, we
may note the relevant provisions of the Election Law. The
election petition was filed under Chapter-II of the Repre-
sentation of the People Act, 1951 (hereinafter referred to
as “the said Act”). Section 59 of the said Act provides that
at every election where a poll is taken votes shall be given
by ballot in such manner as may be prescribed. We are not
772
concerned here with the special procedure for voting pro-
vided in certain cases provided for under section 60 said
Act. Section leo of the said Act deals with the grounds for
during elections to be void. The relevant portion of the
said section reads thus:
“100(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion–
(a) x x x (b) x x x
(c) That any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it con-
cerns a returned candidate, has been materially affected–
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of
the returned candidate by an agent other than his election
agent, or
(iii) by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Con-
stitution or of this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the returned
candidate to be void”.
Conduct of Election Rules, 1961 (referred to hereinafter
as “the Election Rules”) came into force on 25th of April,
1961. Rule 30 of the Election Rules prescribes the form of
the ballot papers. Rule 31 of the Election Rules provides
for arrangements at polling stations. Sub-rule (3) of Rule
31 runs as under:
“(3) the returning officer shall provide at each polling
station a sufficient number of ballot boxes, copies of the
relevant part of the electroal roll, ballot papers, instru-
ments for stamping the distinguishing mark on ballot
773
papers and articles, necessary for electors to mark the
ballot papers.”
Rule 39 of the Election Rules deals with the maintenance
of secrecy of voting by electors within polling stations and
the voting procedure. The material portion of sub-rule (2)
of that rule runs as follows:
“(2) The elector on receiving the ballot paper shall forth-
with–
(a) proceed to one of the voting compartments:
(b) there make a mark on the ballot paper with the instru-
ment supplied for the purpose on or near the symbol of the
candidate for whom he intends to vote.”
Rule 70 lays down rules for the conduct of polls. The
portion of Rule 70 material for the purposes of the case
runs as follows:
“(a) x x x x
(b) to every election in a council unless voting by postal
ballot has been directed in the whole of that constituency
under clause (b) of rule 68,
subject to the following modifications, namely:
(i) clause (a) of sub-rule (1) of rule 31 shall not apply to
an election by assembly members;
(ii) in lieu of rules 37 to 40, the following rules shall
apply:
37A. Method of voting. (1) Every elector has only one vote
at an election irrespective of the number of seats to be
filled.
(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
774
(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.
38A. x x x x
39A. Maintenance of secrecy of voting by electors within
polling station and voting procedure–(1) Every elector, to
whom a ballot paper has been issued under rule 38A or under
any other provision of these rules, shall maintain secrecy
of voting within the polling station and for that purpose
observe the voting procedure hereinafter laid down.
(2) The elector on receiving the ballot paper shall forth-
with-
(a) proceed to one of the voting compartments;
(b) record his vote in accordance with sub-rule (2) of rule
37A with the article supplied for the purpose.
(c) fold the ballot paper so as to conceal his vote;
(d) insert the folded paper in the ballot box; and
(e) quit the polling station:
(It is not necessary to quote the rest of Rule 39A for the
purposes of this Judgment)
It was submitted by learned counsel for the appellant
that the express on “article supplied for the purpose” used
in Rule 39A(2)(b) and Rule 73(2)(e) of the Election Rules
was misconstrued by the High Court. It was submitted by him
that in the context of the election law and the instructions
contained in the hand-books to which reference will be made
that expression should be interpreted as meaning “actually
given” or “handed over”. In this regard, reference was made
to instructions given to the Presiding Officer in respect of
elections to Lok Sabha and State Assemblies. The relevant
instructions in the said hand-book provide that the proce-
dure followed in respect of the election to Lok Sabha and
State Assemblies is that the Polling Officer or
775
Polling Assistant must give the rubber stamp properly inked
to the voter before he proceeds into the voting booth for
marking his choice and the Polling Officer or Polling As-
sistant must take back the said rubber stamp from the voter
after he comes out from the voting both having cast his vote
and then hand it over to the next voter and so on. It was
urged that the same procedure should have been followed
mutatis matandis in the case of an election to the Legisla-
tive Council like the one in question before us, and if this
were done, it would imply that the ball-point pen for mark-
ing the preference should have been personally handed over
to the voter with instructions to use it for marking his
preference. This argument is not worthy of acceptance. As
pointed out by the High Court, the nature of the elections
to the Lok Sabha and the State Assemblies is different from
that of elections to a Legislative Council or Rajya Sabha
and this difference has to be taken into account in inter-
preting the relevant words used in the rules relating to an
election. The election to Lok Sabha and the State Assemblies
is a direct election on the basis of a single member con-
stituency where the voter has only one choice whereas in the
case of an election to the Rajya Sabha, the said election is
by members of the Legislative Assemblies of the States and
the election is an indirect election conducted on the prin-
ciple of proportional representation by means of a single
transferable vote. In the case of elections to the Lok Sabha
and State Assemblies, a rubber stamp with arrow cross-mark
is provided with which the voter has to make a mark on the
symbol of the candidate of his choice in the ballot paper.
Many of the voters are not familiar with the election proce-
dure and it is in these circumstances that the requirement
has been provided that a rubber stamp containing the cross-
mark properly inked should be handed over to each voter with
instructions to use the same for marking his vote or choice.
In the case of the election to the Rajya Sabha or a Legisla-
tive Council, the situation is entirely different. The
number of voters is limited. One could assume that they are
reasonably familiar with the procedure of voting; and the
article supplied for marking the preference is a fountain
pen or ball-point pen. In these circumstances, there is
hardly any warrant for requiring that the procedure of
handing over personally to each voter the article for mark-
ing his preference should be followed and it is quite/’
adequate if the article for marking the preference, namely,
the fountain pen or ball-point pen is made available in the
voting booth with clear instructions that the same should be
used in marking the preference. It must also be borne in
mind that there is no express rule or instruction in connec-
tion with the elections to the RaRajya Sabha by Members of
the State Assemblies or elections to the Legislative Coun-
cils of States which specifically requires that the arti-
776
cle for marking the preference should be handed over to each
voter personally. In these circumstances, in our view, the
High Court was right in interpreting the expression “article
supplied for the purpose” in Rule 39A(2)(b) and Rule
73(2)(e) of the Election Rules as meaning “made available
for the purpose” or “provided for the purpose”. Reliance was
placed by learned counsel for the appellant on the decision
of this Court in Ram Utar Singh Bhaduria v. Ram Gopal Singh
& Ors., [1976] 1 SCR 191 and particularly, the observations
at page 200 of the said report. We are of the view that that
decision as well as the other decisions in this connection
cited before us are in connection with the elections to the
Lok Sabha or the State Assemblies and have no application to
an indirect election like the election to the Rajya Sabha by
Members of State Assemblies.
Rule 56 of the Election Rules deals with counting of
votes. The material portion of sub-rule (2) of Rule 56 of
the Election Rules runs as follows:
“56. Counting of Votes. (1) The ballot papers taken out of
each ballot box shall be arranged in convenient bundles and
scrutinized.
(2) The returning officers shall reject a ballot paper–
(a) x x
(b) If it bears no mark at all or, to indicate the vote 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 …. ”
Rule 73 deals with the scrutiny of opening of ballot
boxes and packets of postal ballot papers. The material
portion of sub-rule (2) of Rule 73 runs as follows:
“(2) a ballot paper shall be invalid on which–
(a) the figure 1 is not marked; or
(b) the figure 1 is set opposite the name or more than one
candidate or is so placed as to render it doubtful to which
candidate it is intended to apply; or
777
(c) x x x
(d) x x x
(e) there is any figure marked otherwise than with the
article supplied for the purpose.”
It would now be convenient to deal with the first con-
tention of the learned counsel for the appellant. As we have
already pointed out, the said rejected ballot paper was
rejected on the ground that it was marked otherwise than
with an article supplied for the purpose. As we have already
pointed out, the figure 1 indicating the first preference in
the said ballot paper was marked in green ink whereas in the
ball-point pen kept in the voting booth with the ballot box,
the ink used was blue. The returning officer took the view
that the said marking of preference in green ink clearly
established that it was done with a bail-point pen other
than the one which was supplied for marking the preference
and hence the vote was invalid. It was urged by Shri Jeth-
malani in this connection that although the marking of
preference was done in green ink, there was no doubt that
the intention of the over concerned was to give the first
preference vote to the appellant. It was submitted by him
that the fundamental rule of election law is that effect
should be given to the intention of the voter and this could
be done only by treating the vote as valid, as the intention
of the voter was quite clear. Mr. Jethmalani may be right
when he contends that the intention of the voter could be
clearly gathered and it was to cast the first preference
vote for the appellant. However, it is not enough for the
vote to be valid that it is possible to gather the intention
of the voter to vote for a particular candidate as pointed
out by the Constitution Bench of this Court in the leading
case of Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others,
[1955] 1 SCR 1104 at page 1132. This Court held that (
1132):
“But when the law prescribes that the intention should be
expressed in a particular manner, it can be taken into
account only if it is so expressed. An intention not duly
expressed is, in a court of law, in the same position as an
intention not expressed at all.”
In the present case Rule 39(2)(b) which is applicable to
the election petition before us clearly prescribes that the
vote must be cast by the voter in accordance with the said
sub-rule (2) of Rule 39 of the Election Rules, with the
article supplied for the purpose. Rule 39A(2)(b) read with
Rule 37A(2)(a) prescribes that an elector in giv-
778
ing 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 with the article sup-
plied for the purpose. Hence, unless the ball-point pen kept
with the ballot box is not to be regarded as the article
supplied for marking the preference, the intention of the
elector in the present case cannot be given effect to as it
was expressed in a manner inconsistent with the provisions
in the rules. Clause (b) of sub-rule (2) of Rule 56 of the
Election Rules provides inter alia that if a ballot paper
contains a mark made on it otherwise than with the instru-
ment supplied for the purpose, the returning officer shall
reject the said ballot paper. Rule 73 is included in Part
VII of the Election Rules and that Part applies to the
counting of votes at elections by Assembly members. Clause
(e) of sub-rule (2) of Rule 73 of the Election Rules set out
earlier that a ballot paper shall be invalid on which there
is any figure marked otherwise than with the article sup-
plied for the purpose. Rule 73 is directly applicable to the
case of the election in question and as aforesaid it pre-
scribes that if on the ballot paper there is any figure
marked otherwise than with the article supplied for the
purpose, the ballot paper shall be invalid. Assuming that
the voter in this case had expressed his intention clearly
by marking the figure 1 in green ink, he did so in violation
of the express provisions of the Rules which have a statuto-
ry force and hence no effect can be given to that intention.
It was next argued in this connection that the expres-
sion “article supplied for the purpose” as used in the said
Rules 39A(2)(b) and 73(2)(e) was misconstrued by the Presid-
ing Officer and the High Court in the present case. It was
submitted by learned counsel for the appellant that Rule
56(2)(b) was not complied with by making a ball-point pen
available in the polling compartment near the ballot box for
the use of the electors in marking their preference as law
required that the Polling Officer should personally hand
over the bali-point pen to the voter before he proceeds to
the voting booth with instructions to mark his preference
with that ball-point pen. He referred to the hand-book
dealing with the procedure prescribed in elections to the
Lok Sabha and to the Legislative Assemblies and submitted
that the said procedure was applicable mutatis mutandis to
elections to the Rajya Sabha and the Legislative Councils.
It was urged by him that the second proviso to clause (e) of
sub-rule (2) of Rule 73 of the Election Rules provides that
if the returning officer is satisfied that any such defect
as is mentioned in the said clause has been caused by any
mistake or fault on the part of the Presiding Officer or
Polling Officer, the ballot paper shall not be rejected
merely on the ground of the said defect. It was contended by
him that the Polling Officer was bound to hand over to
779
each voter individually the ball-point pen to be used for
marking his preference on the ballot paper. He submitted
that the duty of the Polling Officer was to hand over the
ball-point pen to the voter to use the same for marking his
preference and it was also his duty to take back the said
pen from the voter after he has cast his vote and given the
same to the next voter. He urged that merely providing a
bail-point pen for voting did not constitute substantial
compliance with Rule 39A(2)(b) or Rule 73(2)(e). He urged
that the mistake in the present case, namely, marking of the
preference with green ink on the ballot paper, had occurred
because no bail-point pen was handed over as aforesaid to
the voter concerned. We are unable to accept this submis-
sion. The procedure followed in an election to the Lok Sahba
or the State Assembly is to give to the voter a rubber stamp
for voting with an arrow mark properly inked with instruc-
tions to use the same for voting before the voter enters the
voting compartment to put his mark against the name of the
candidate for whom he desires to vote and to take the rubber
stamp back from the voter when he comes out of the voting
compartment and to repeat this process for every voter. In
the first place, it must be noticed that there is no rule or
standing order requiring the Presiding Officer or to follow
this procedure in the case of an election to the Rajya Sabha
or Legislative Council of a State. There is a material
difference between an election to Lok Sabha or a Legislative
Assembly which is a direct election with one constituency
for each seat and only vote is to be cast and an election to
Rajya Sabha which is an indirect election with the preferen-
tial system of voting. Sub-rule (2) of Rule 39 which is
applicable to such an election to a Legislative Assembly
provide that the elector on receiving the ballot paper has
to make a mark on the ballot paper with the instrument
supplied for the purpose on or near the symbol of the candi-
date for whom he intends to vote. It is only in the case of
an election like this that it becomes necessary to provide a
rubber stamp properly inked to the voter to mark his prefer-
ence. It must be remembered that in such an election case,
the number of voters or electors is extremely large and many
of them might be unfamiliar with the voting procedure. An
election to the Rajya Sabha, on the other hand, is an indi-
rect election with multiple candidates’ constituency and the
system of voting followed is the preferential system of
voting. Rule 37A of the Election Rules which is applicable
to such an indirect election by virtue of the provisions of
Rule 70 provides that an elector in giving his vote shall
place on his ballot paper figure 1 in the space opposite the
name of the candidate for whom he wishes to vote in the
first instance. This difference in the case of an election
to the Rajya Sabha makes it wholly unnecessary that the
Presiding Officer or the Polling Officer should hand over to
780
every voter individually a bail-point pen to mark his vote
and it would quite wholly be adequate if the article for
marking the preference, namely, a ball-point pen, is provid-
ed to the voter to use the same for marking his preference
or if the pen is placed in such a way as to make it clear
that the marking of the preference is to be done with that
pen and instructions given to use that pen for marking the
preference. The evidence of the returning officer, which has
been accepted by the High Court is to the effect that there
were two voting compartments in the polling booth and in
each of them a ball-point pen with blue ink was kept as soon
as an elector went into the polling booth, one Polling
Assistant gave him his identity slip and another Polling
Assistant gave to the elector printed copies of Rules 37A
and 39A of the Election Rules and a copy of the guidelines.
Then the elector went to the first Polling Officer who
obtained his signature in the counter-foil of the ballot
paper and instructed the elector that he should mark his
preference on the ballot paper with the article kept for the
purpose inside the voting compartment. Another Polling
Officer gave the ballot paper to the voter and again in-
structed him to go into the voting compartment and mark the
ballot paper with the article kept there for that purpose,
fold the ballot paper before coming out and put in into the
ballot box in front of the Polling Officer. In the light of
this evidence, we are of the view that the ball-point pen
with blue ink kept in the voting compartment for marking the
preference must be regarded as the article supplied for that
purpose, namely, the purpose of the voter marking his pref-
erence on the ballot paper. It was submitted by learned
counsel for the appellant that it was possible that a voter
might have used his own pen if the pen kept in the voting
compartment was not working and such a vote cannot be re-
garded as invalid. We are not concerned with a case of that
kind here as there is no evidence that in any voting com-
partment the ball-point pen kept there was not working. It
was next urged that if a voter had used another ball-point
pen, that is, other than the one kept in the voting compart-
ment containing the blue ink, it would not have been possi-
ble to find out that the preference marked with such a
bail-point pen had been used for marking the preference and
not the pen supplied. This is of no relevance here. The
possibility that in a given case a breach of the rules may
be difficult to detect cannot lead to the conclusion that
the mandatory requirement that preference on the ballot
paper must be marked with the article supplied for the
purpose should be regarded as not binding in law. We are,
therefore, of the view that the said ballot paper was right-
ly rejected by the returning officer and the arguments urged
by learned counsel for the appellant in that contention must
be rejected.
781
The next point is regarding the three first preference
votes cast in favour of respondent no. 1 which were accepted
by the returning officer as stated earlier. In respect of
these three votes, the figure 1 is marked, not in the
right-hand column opposite the name of respondent no. 1, but
in the left-hand column containing the name of candidate and
opposite the name of respondent no. 1. The appellant unsuc-
cessfully objected to the validity of these three ballot
papers on the ground that the first preference had not been
marked in the space provided for that purpose opposite the
name of the candidate concerned, namely, respondent no. 1,
as required by Rule 37A(2). It was submitted by learned
counsel for the appellant that the returning officer as well
as the High Court were in error in holding that the said
three ballot papers were valid. We propose to discuss this
controversy very shortly because we are in full agreement
with the reasoning and conclusions given by the High Court
in its impugned judgment in coming to the conclusion that
the returning officer was justified in rejecting the objec-
tions preferred by the appellant to the said three votes and
holding that the same were valid. The relevant portion of
Rule 37A(2) of the Election Rules has already been quoted
earlier. Clause (a) of sub-rule (2) of that Rule only pro-
vides that the voter shall place on his ballot paper the
figure i in the space opposite the name of the candidate for
whom he wishes to vote in the first instance. it is signifi-
cant that this rule does not specifically say that the
figure 1 must be placed in the column earmarked for marking
the preference but only requires that the figure 1 should be
placed opposite the name of the candidate. Sub-rule (4) of
Rule 71 which is a definition runs as follows:
“71(4): ‘first preference’ means the figure 1 set opposite
the name of a candidate; ‘second preference’ means the
figure 2 set opposite the name of a candidate; ‘third pref-
erence’ means the figure 3 set opposite the name of a candi-
date, and so on;”
It is significant that in this sub-rule also there is
nothing to indicate that the preference must be indicated in
the column reserved for that purpose, the only requirement
being that the figure 1 should be written opposite the name
of the candidate. Similarly, sub-rule (2)(b) of Rule 73 only
lays down that if 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 applied, the ballot paper
would be invalid. Sub-rule 12) of Rule 73 deals with the
invalidity of ballot papers and that subrule nowhere states
that merely by reason of the preference being
782
marked in the wrong column, if the marking is opposite the
name of the candidate concerned, the ballot paper shall be
rendered invalid. It is true that the column in which the
preference should have been marked and intended for that
purpose was the column on the righthand side of the first
column where the name of the candidate was to be put; but
there is no express provision to the effect that unless the
preference is marked in the correct column, the ballot paper
would be invalid. In such a situation, the principle enunci-
ated by this Court in several judgments and reiterated in S.
Sivaswami v.V. Malaikannan & Ors., [1984] 1 SCR 104 that the
primary task of the Court in a case where the question is
whether the ballot paper is invalid is to ascertain the
intention of the voter, must be applied. In that case, the
Court held that the ballot paper shall not be rejected as
invalid if it is reasonably possible to gather a definite
indication from the marking so as to identify the candidate
in favour of whom the vote had been intended to be given.
This, of course, is subject to the rule that before a ballot
paper is accepted as valid the ballot paper must not be
invalid under any other express provision and the intention
of the voter must not be expressed in a manner which is
contrary tO or totally inconsistent with the manner pre-
scribed under the said Act or the Election Rules for ex-
pressing the same. In the case of the said, three votes in
question, the figure 1 was clearly marked opposite the name
of respondent no. 1, being the candidate concerned, as
required by the express provision of the said Rule 37A and
the intention of the voter was clearly to cast the first
preference in favour of respondent no. 1. In these circum-
stances, the ballot papers were rightly accepted by the
returning officer as valid and the High Court was justified
in coming to the conclusion to which it has arrived.
In the result, the appeal fails and is dismissed. Howev-
er, considering the facts and circumstances of the case,
there will be no order as to costs.
R.S.S. Appeal dis-
missed.
783