PETITIONER:
S. SIVASWAMI
Vs.
RESPONDENT:
V. MALAIKANNAN AND OTHERS
DATE OF JUDGMENT27/09/1983
BENCH:
ERADI, V. BALAKRISHNA (J)
BENCH:
ERADI, V. BALAKRISHNA (J)
DESAI, D.A.
MISRA, R.B. (J)
CITATION:
1983 AIR 1293 1984 SCR (1) 104
1984 SCC (1) 296 1983 SCALE (2)418
CITATOR INFO :
R 1984 SC1513 (5)
F 1990 SC 838 (17)
ACT:
Election-Law-Representation of the People Act, 1951,
Sections 80 to 83, 98, 100(1) (d) (iii) and (iv) and section
101-Rejection of ballot papers where the marking was
partially in the column of the candidate and partly in the
shaded area and also those where the marking was partially
in the candidates column and partially on the dividing line
in the bottom as invalid, based on the illustration at page
40 of the pamphlet containing instructions in Tamil and
issue by the Chief Electoral Officer, Tamil Nadu-Validity
of-Conduct of Election Rules, 1961-Principle of Rule 39(2)
(b) explained.
HEADNOTE:
In the General Elections to the Tamil Nadu Assembly
held in May 1980, the appellant contested for the llayangudi
Assembly Constituency seat and was duly elected as he polled
34437 votes. The first respondent who had polled 34381 votes
and missed by a narrow margin of 56 votes filed an election
petition before the High Court of Madras on three grounds
viz., (a) improper rejection by the Returning Officer of
valid votes cast in favour of the respondent; (b) improper
reception of invalid votes cast in favour of the appellant
and (c) improper treatment of valid votes cast in favour of
the first respondent and the 3rd respondent as votes cast in
favour of the appellant. The High Court accepted the
petition on its finding on the first ground in favour of the
Ist respondent and ordered rescrutiny of the votes rejected
as invalid. Hence the appeal by special leave.
Dismissing the appeal, the Court
HELD: 1:1 The pamphlet issued in Tamil titled "A
pamphlet showing illustrative cases of valid and invalid
postal and ordinary ballot papers "(Ex P3) issued by the
chief Electoral Officer, Tamil Nadu is misleading and
therefore should be withdrawn. [111 D]
1:2. In the illustration of invalid papers appearing at
page 40 of the Book (Ex P3), the major portion of the
marking is in the shaded area and a small portion of the
mark is in the column of the candidate. Apparently what was
intended to be printed was an illustration showing a ballot
paper in which the whole of the marking was in the shaded
area only without any portion of it being in the column of
the candidate. The illustration as printed in the pamphlet
obviously conveys the erroneous impression that a ballot
paper where the marking is partly in the column of the
candidate and partly in the shaded area is to be rejected by
the Returning Officer as invalid. This is
105
directly contrary to the intendment of the relevant rule and
also the express wording of the instructions issued by the
Election Commission.
[110 H; 111 A-B]
In the instant case the Returning Officer was obviously
misled by the aforesaid illustration contained in the
pamphlet, Ex. P 3 and that was the sole reason why he
rejected as invalid the ballot papers where the marking was
contained partly in the column of the first respondent and
partly on the demarcating line or shaded area. Had the
Returning Officer taken the trouble to study the
instructions contained in the "Handbook for the Returning
Officer" it should have been apparent to him that the
illustration aforementioned contained in Ex. P3 did not
correctly reflect the position laid down in the rules and
instructions. [111 C-D]
2:1 The essence of the principle in Rule 39(2) (b) of
the Conduct Rules, 1961, is that so long as the ballot paper
bears a mark made with the instrument supplied for the
purpose, the ballot paper shall not be rejected as invalid,
if it is reasonably possible to gather a definite indication
from the marking as to the identity of the candidate in
favour of whom the vote had been given. [109 C-D]
2:2. Nearly 90% of the electorate in this country
consists of illiterate and uneducated rural folk totally
unacquainted with the intricacies of the rules and
technicalities of procedure pertaining to elections. Even if
the best of endeavour is made to explain to them such
complicated rules and procedures they may not be capable of
grasping and fully understanding all the implications and
actually carrying them into effect while exercising their
franchise. If the right conferred on the people to choose
their representatives to the State Legislatures and the
Parliament through the process of free and fair elections is
to be meaningful the will of the illiterate and
unsophisticated voter expressed through a marking on the
ballot paper which though not strictly inside the column of
the particular candidate is clearly indicative of the
identity of the candidate for whom the vote is cast has to
be respected and given its full effect. The Election
Commission has manifested due awareness of this stark
reality while issuing instructions to the Returning Officers
regarding the principles to be adopted for rejection of
ballot papers in the "Handbook for Returning Officers"
published by the Commission in 1982, and also a "Handbook
for candidates' for election to the House of People,
Legislative Assemblies of States and Union Territories etc.
[109 D-G]
Observation: In order to avoid a recurrence of such
unfortunate instances of illegal rejection of votes on the
basis of misleading illustration contained in the pamphlet,
Ex. P3, it is essential that immediate action should be
taken by the Chief Electoral Officer, Tamil Nadu to withdraw
the said pamphlet containing illustrations correctly
reflecting the legal position under relevant rules and
instructions relating to the scrutiny acceptance or
rejection or ballot papers. [111 F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1737
(NCE) of 1981.
106
Appeal by Special leave from the Judgment and Order
dated the 29th June, 1981 of the Madras High Court in
Election Petition No. 3 of 1980.
R.K. Garg, V.J. Francis for the Appellant.
Dr. Y.S. Chitale, K. Rajendra Choudhary and S.
Srinivasan for Respondents.
A.V. Rangam and Mrs, Sarla Chandra for Respondent No.
5.
The following Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. At the conclusion of the hearing
of this appeal arising out of an election petition filed
under Sections 80 to 83, 98, 100(1) (d) (iii) and (iv) and
Section 101 of the Representation of People Act, 1951 we
passed the following order announcing the decision arrived
at by us:
“The appeal is dismissed with no order as to costs. All
interim orders passed by this Court are vacated.
Reasons will follow.”
We now proceed to state the reasons in support of the
aforesaid conclusion.
In the General Elections to the Tamil Nadu Assembly
held in May 1980, the Appellant had contested for the
Ilayangudi Assembly Constituency seat, and the 1st
Respondent was a rival candidate sponsored by the Communist
Party of India. Respondents 2, 3 and 4 had also stood for
election in the same constituency as independent candidates.
The polling took place on the 28th of May 1980. The counting
of votes was commenced at 10.000 a.m. on the 1st of June
1980 and at 5.00 p.m. after the postal ballot votes were
also counted, the result of the election was announced by
the Returning Officer, declaring that the appellant was duly
elected on the ground that he had secured the highest number
of votes among the contesting candidates. According to the
results of the counting as announced, the appellant had
secured 34, 437 votes and the 1st respondent had polled 34,
381 votes. The other three candidates secured only a very
small number of votes and had forfeited their deposits.
Thus, it was only by a
107
narrow margin of 56 votes that the appellant was declared to
have won the election.
The validity of the election was challenged by the 1st
respondent by filing the election petition before the High
Court of Madras praying for an order for the scrutiny and
recounting of all the ballot papers cast in the election to
the Ilayangudi Assembly Constituency held on 28.5.80 and for
a declaration that the election of the appellant to that
constituency was void and that the 1st respondent had been
duly elected in respect of that constituency. The main
grounds urged in support of the prayer for setting aside the
election of the appellant were three-fold, viz., (1)
improper rejection by the Returning Officer of valid votes
cast in favour of the 1st respondent; (2) improper reception
of invalid votes cast in favour of the appellant; and (3)
improper treatment of valid votes cast in favour of the
first respondent and the 3rd respondent as votes cast in
favour of the appellant. A further ground was also taken in
the petition that the procedure adopted by the Returning
Officer in the counting of votes and the declaration of the
result of the election was not in accordance with the
provisions of the Representation of the People Act
(hereinafter called the Act), the rules and the instructions
issued in that regard.
After a detailed discussion of the evidence adduced in
the case the learned single Judge of the High Court, who
tried the election petition, found that there was no basis
for the allegation made in the petition that the procedure
adopted by the Returning Officer in the counting of votes
was not in accordance with the relevant provisions of the
Act, the rules and the instructions. It was further found by
the learned Judge that the averment made in the petition
that valid votes cast in favour of the 1st respondent and
the 3rd respondent had been improperly treated as votes
polled in favour of the appellant was devoid of factual
foundation. However, on the issue relating to the question
whether there had been improper rejection of valid votes
cast in favour of the 1st respondent herein (petitioner in
the election petition), the learned Judge found that it was
clearly established by the evidence that the Returning
Officer had erroneously and illegally rejected as invalid
ballot papers in which the marking had been done either on
the demarcation line at the bottom of the 1st respondent’s
column-the first respondent’s name was printed on the ballot
paper as the last name immediately beneath the said name was
the demarcation line at the bottom-or partially on the
demarcation
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line and partially in the column of the 1st respondent. The
difference in votes between the appellant and the 1st
respondent being only 56, the learned Judge held that there
should be a rescrutiny of the rejected votes and a recount
in the light of such scrutiny should be undertaken. The
total number of votes rejected on different counts was 751.
The 1st respondent deposed in his evidence that there were
as many as about 300 votes cast in his favour in which the
marking was partially on the demarcation line and partially
in the column where his name was printed and they had all
been rejected. The Returning Officer, in his testimony, as
RW 2, admitted that he had treated such ballot papers as
invalid but asserted that the total number of ballot papers
rejected on the said ground was only 127. The learned single
Judge was of opinion that even if the version of RW 2
regarding the number of ballot papers rejected on the
aforesaid ground was to be accepted as correct, the
Returning Officer had committed a manifest illegality while
counting the votes and the declaration of the result made on
the basis of such defective counting had to set aside.
Accordingly, the High Court directed a re-scrutiny and a
recount of all the rejected votes to be carried out in the
premises of the High Court. The learned Judge appointed one
of Assistant Registrars of the High Court was Presiding
Officer to supervise the recounting. The Chief Electoral
Officer was directed to cause the production of all the
rejected votes in respect of the Ilayangudi Assembly
constituency at the election held on 28.5.1980. A direction
was also issued to the Returning Officer-5th respondent -to
render all necessary assistance to enable the re-scrutiny
and recounting to be properly carried out by the Assistant
Registrar as presiding officer. It is against the said
decision of the High Court that this appeal by special leave
has been preferred.
The Returning Officer, in the testimony given by him as
RW2, has admitted in categorical terms that he had rejected
as invalid ballot papers where the marking was partially in
the column of the candidate and partially in the shaded area
and also those where the marking was partially in the
candidate’s column and partially on the dividing line in the
bottom. His explanation was that in doing so he had strictly
followed the instructions constrained in the booklet P3,
entitled “Instructions to counting staff” issued in Tamil
language by the Chief Electoral Officer of Tamil Nadu in
connection with the elections to the Tamil Nadu Legislative
Assembly, 1980.
Rule 39(2) (b) of the Conduct of Election Rules 1961
requires an elector to make a mark on the ballot paper with
the instrument
109
supplied for the purpose “on or near the symbol of the
candidate for whom he intends to vote”. Rule 56(2) directs
the Returning Officer to reject a ballot paper
“(a)………………… or (b) if it bears no mark at all
to indicate the vote, or it bears a mark else where than on
or near the symbol of one of the candidates on the face of
the ballot paper or, it bears a mark made otherwise than
with the instrument supplied for the purpose, or
(c)……………………, or (d) if the mark indicating
the vote thereon is placed in such a manner as to make it
doubtful to which candidate the vote has been given.” The
essence of the principle incorporated in the rule is that so
long as the ballot paper bears a mark made with the
instrument supplied for the purpose, the ballot paper shall
not be rejected as invalid, if it is reasonably possible to
gather a definite indication from the marking as to the
identity of the candidate in favour of whom the vote had
been given. In this context it is necessary to remember that
nearly 90% of the electorate in this country consists of
illiterate and uneducated rural folk totally unacquainted
with the intricacies of the rules and technicalities of
procedure pertaining to elections. Even if the best of
endeavour is made to explain to them such complicated rules
and procedures they may not be capable of grasping and fully
understanding all the implications and actually carrying
them into effect while exercising their franchise. If the
right conferred on the people to choose their
representatives to the State Legislatures and the Parliament
through the process of free and fair elections is to be
meaningful the will of the illiterate and unsophisticated
voter expressed through a marking on the ballot paper which
though not strictly inside that column of the particular
candidate is clearly indicative of the identity of the
candidate for whom the vote is cast has to be respected and
given its full effect. It is gratifying to note that the
Election Commission has manifested due awareness of this
stark reality while issuing instructions to the Returning
Officers regarding the principles to be adopted for
rejection of ballot papers in the “Handbook for Returning
Officers” published by the Commission in 1982. At page 90 of
the book, the Returning Officers have been instructed to
reject a ballot paper only-
(i) when there is no mark at all on the front or the
mark is made otherwise than with the instrument
supplied for the purpose;
(ii) when the mark is in blank area, that is to say, at
the back or entirely in the shaded area; or
110
(iii)when there are marks against two or more
candidates;
(iv) When there is any writing or mark by which the
voter can be identified; or
(v) when the ballot paper is mutilated beyond
recognition; or
(vi) when the ballot paper is not genuine or it is
spurious.
The Election Commission has also issued a “Handbook for
candidates” for election to the House of the People,
Legislative Assemblies of States and Union Territories, etc.
At page 78 of the book, it is specifically stated that the
Returning Officer will not reject any ballot paper simply
because the mark is only partially within the column of one
candidate and the rest of the mark is in the blank area. It
has also clarified that a ballot paper shall not be rejected
merely on the ground that the mark indicating and vote is
indistinct or made more than once, if the intention that the
vote is for a particular candidate clearly appears from the
way the paper is marked. The matter has been further
clarified in a pamphlet issued by the Election Commission of
India in 1982 entitled” A Pamphlet showing illustrative
cases of valid and invalid postal and ordinary ballot
papers”. The illustration at page 17 of the pamphlet depicts
a case where the mark affixed on the ballot paper is
partially in the column of the candidate No. 1, the rest of
it being in the shaded area and it is clearly directed that
in such cases the ballot paper should be treated as
containing a valid vote in favour of Candidate No. 1. The
Chief Electoral Officer of Tamil Nadu had issued a similar
pamphlet containing instructions in Tamil to the counting
staff purporting to be in terms identical with those
contained in the Handbook and the pamphlet issued by the
Election Commission of India, Ex.P3 marked in this case is
the pamphlet so issued in Tamil by the Chief Officer, Tamil
Nadu. Ex.P3 contains illustrative cases of valid and invalid
postal and ordinary ballot papers and in publishing it, the
obvious intention was to have the illustrations on
indentical lines as those found in corresponding pamphlet
issued by the Election Commission of India. Unfortunately,
however, in the illustration of invalid ballot papers
appearing at page 40 of the Book (Ex.P3), the major portion
of the marking is in the shaded area and a small portion of
the mark is in the column of the candidate. Apparently what
was intended to be printed was an illustration
111
showing a a ballot paper in which the whole of the marking
was in the shaded area only without any portion of it being
in the column of the candidate. The illustration as printed
in the pamphlet obviously conveys the erroneous impression
that a ballot paper where the marking is partly in the
column of the candidate and partly in the shaded area is to
be rejected by the Returning Officer as invalid. This is
directly contrary to the intendment of the relevant rule and
also the express wording of the instructions issued by the
Election Commission.
In the case before us, the Returning officer was
obviously misled by the aforesaid illustration contained in
the pamphlet, Ex.P.3 and that was the sole reason why he was
rejected as invalid the ballot papers where the marking was
contained partly in the column of the first respondent and
partly on the demarcating line or shaded area. Had the
Returning Officer taken the trouble to study the
instructions contained the “Handbook for the candidates” and
the “Handbook for the Returning Officers” it should have
been apparent to him that the illustration aforementioned
contained in Ex. P3 did not correctly reflect the position
laid down in the rules and instructions. It follows that the
High Court was perfectly right in holding that the counting
and declaration of the results in the instant case were
vitiated by serious illegality and in directing a re-
scrutiny and recounting of all the rejected votes. The
appeal is, therefore, devoid of merits.
Before we part with the case, we consider it necessary
to observe that in order to avoid a recurrence of such
unfortunate instances illegal rejection of votes on the
basis of the misleading illustration contained in the
pamphlet, Ex. P3, it is essential that immediate action
should be taken by the Chief Electoral Officer, Tamil Nadu,
to withdraw the said pamphlet from circulation and to
substitute it by issuing a fresh pamphlet containing
illustration correctly reflecting the legal position under
relevant rules and instructions relating to the scrutiny,
acceptance of rejection of ballot papers.
The Registrar will forward copies of this judgment to
the Election Commission of India and to the Chief Electoral
Officer, Tamil Nadu, for necessary early action being taken
in the light of our foregoing observations,
S.R. Appeal dismissed.
112