{"id":180080,"date":"1990-03-01T00:00:00","date_gmt":"1990-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/era-sezhiyan-vs-t-r-balu-and-ors-on-1-march-1990"},"modified":"2016-06-25T14:46:03","modified_gmt":"2016-06-25T09:16:03","slug":"era-sezhiyan-vs-t-r-balu-and-ors-on-1-march-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/era-sezhiyan-vs-t-r-balu-and-ors-on-1-march-1990","title":{"rendered":"Era Sezhiyan vs T.R. Balu And Ors on 1 March, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Era Sezhiyan vs T.R. Balu And Ors on 1 March, 1990<\/div>\n
Equivalent citations: 1990 AIR 838, \t\t 1990 SCR (1) 767<\/div>\n
Author: M Kania<\/div>\n
Bench: Kania, M.H.<\/div>\n
           PETITIONER:\nERA SEZHIYAN\n\n\tVs.\n\nRESPONDENT:\nT.R. BALU AND ORS.\n\nDATE OF JUDGMENT01\/03\/1990\n\nBENCH:\nKANIA, M.H.\nBENCH:\nKANIA, M.H.\nKULDIP SINGH (J)\n\nCITATION:\n 1990 AIR  838\t\t  1990 SCR  (1) 767\n 1990 SCC  Supl.  322\t  JT 1990 (1)\t392\n 1990 SCALE  (1)377\n\n\nACT:\n    Representation of the People Act, 1951\/Conduct of  Elec-\ntion Rules 1961: Sections 60 and 100\/Rules 30, 31 37A,\t39A,\n56  &  70--Rajya Sabha election--Ballor\t paper\tmarked\twith\ngreen ink while blue ball point pen kept in voting booth for\nuse  by voter--Voting in violation of election\trules--Hence\nballot paper rightly rejected: mark not place in the  column\nearmarked for marking the preference but placed opposite the\nname of the candidate: intention of the voter clearly  indi-\ncated-Hence ballotpapers rightly accepted.\n\n\n\nHEADNOTE:\n    Election of six Members to the Rajya Sabha by the elect-\ned  Members of the Tamil Nadu Legislature Assembly was\theld\nin June 1986. The appellant and respondent nos. 1 to 7\twere\nthe  eight candidates in the field. Respondent Nos. 1  to  6\nwere declared duly elected and the appellant was declared as\nhaving\tlost the election. The appellant thereupon filed  an\nelection petition which was dismissed by the High Court.\n    Before  this  Court it was contended on  behalf  of\t the\nappellant that: (1) the first preference vote in his  favour\nin which the first preference was marked on the ballot paper\nin green ink had been wrongly rejected on the ground that it\nwas marked otherwise than with the article supplied for\t the\npurpose,  i.e., the ball-point pen with blue ink  which\t had\nbeen  kept  in the voting booth; and (2)  the  three  ballot\npapers\tindicating  the first preference in  favour  of\t the\nfirst  respondent, which did not contain the figure  'I'  in\nthe  space  intended for marking the said figure,  had\tbeen\nwrongly accepted. In support of the first contention it\t was\nargued\tthat: (1) the expression \"article supplied  for\t the\npurpose\"  used\tin Rule 39A(2)(b) and Rule 73(2)(e)  of\t the\nConduct\t of  Election Rules, 1961, was misconstrued  by\t the\nHigh  Court;  (2) in the context of the\t election  law,\t the\ninstructions contained in the hand-books, and the  procedure\nfollowed  in respect of the election to Lok Sabha and  State\nAssemblies,  the expression \"article supplied for  the\tpur-\npose\"  should be interpreted as meaning \"actually given\"  or\n\"handed\t over\", and as such the ball-point pen\tfor  marking\nthe  preference should have been personally handed  over  to\nthe voter with instructions to use it for marking his  pref-\nerence; (3) the mistake in the present case, namely, marking\n768\nof  the preference with green ink on the ballot\t paper,\t had\noccurred  because no bail-point pen was handed over  to\t the\nvoter  concerned; and (4) the fundamental rule\tof  election\nlaw  is that effect should be given to the intention of\t the\nvoter  and this could be done only by treating the  vote  as\nvalid.\nDismissing the appeal, this Court,\n    HELD:  (1)\tThere is a material  difference\t between  an\nelection  to Lok Sabha or a Legislative Assembly which is  a\ndirect election with one constituency for each seat and only\nthe vote is to be cast, and an election to Rajya Sabha which\nis  an\tindirect election with the  preferential  system  of\nvoting.\t This  difference has to be taken  into\t account  in\ninterpreting  the relevant words used in the Rules  relating\nto an election. [779D-E]\n    (2)\t Rule  39A(2)(b)  read with Rule  37A(2)(a)  of\t the\nConduct\t of Election Rules 1961 prescribes that at an  elec-\ntion in a council an elector in giving his vote shall  place\non his ballot paper the figure 'I' in the space opposite the\nname  of  the candidate for whom he wishes to  vote  in\t the\nfirst  instance with the article supplied for  the  purpose.\nFurther, Rule 73 which is directly applicable to the  count-\ning  of votes at elections by Assembly\tMembers,  prescribes\nthat  if  on  the ballot paper there is\t any  figure  marked\notherwise  than with the article supplied for  the  purpose,\nthe ballot paper shall be invalid. [777H; 778A; D]\n    (3) The High Court was right in interpreting the expres-\nsion  \"article supplied for the purpose\" in  Rule  39A(2)(b)\nand  Rule  73(2)(e) of the Election Rules as  meaning  \"made\navailable  for the purpose\" or \"provided for  the  purpose.\"\n[778E]\n    Ram\t Utar  Singh Bhaduria v. Ram Gaopal  Singh  &  Ors.,\n[1976] 1 SCR 191 distinguished.\n    (4)\t The  difference in the case of an election  to\t the\nRajya  Sabha makes it wholly unnecessary that the  Presiding\nOfficer\t or  the Polling Officer should hand over  to  every\nvotor individually a hall-point pen to mark his vote and  it\nis enough if the article for marking the preference, namely,\nbail-point pen, is provided to the voter to use the same for\nmarking his preference or if the pen is placed in such a way\nas to make it clear that the marking of the preference is to\nbe done with that pen and instructions given to use that pen\nfor marking the preference. [779H; 780A-B]\n(5)  It\t is not enough for the vote to be valid that  it  is\npossible\n769\nto gather the intention of the voter to vote for a  particu-\nlar  candidate. When the law prescribes that  the  intention\nshould be expressed in a particular manner, it can be  taken\ninto account only if it is so expressed. [777E-G]\n    Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors.,<\/a>  [1955]\n1 SCR 1104, refterred to.\n    (6)\t Assuming that the voter in this case had  expressed\nhis intention clearly by marking the figure 1 in green\tink,\nhe  did\t so in violation of the express\t provisions  of\t the\nRules  which have a statutory force and hence no effect\t can\nbe given to that intention. [778D]\n    (7) Clause (a) of sub-rule (2) of Rule 37A only provides\nthat the voter shall place on his ballot paper the figure  1\nin the space opposite the name of the candidate for whom  he\nwishes to vote in the first instance. It is significant that\nthis  rule does not specifically say that the figure 1\tmust\nbe placed in the column earmarked for marking the preference\nbut  only requires that the figure 1 should be placed  oppo-\nsite the name of the candidate. [781D-E]\n    (8) In the case of the three first preference votes cast\nin  favour  of\trespondent No. 1 the figure  1\twas  clearly\nmarked\topposite  the name of respondent no.  1,  being\t the\ncandidate concerned, as required by the express provision of\nthe said Rule 37A, and the intention of the voter was clear-\nly to cast the first preference in favour of respondent\t No.\n1. [782E]\n    S. Sivaswami v. V. Malaikannan & Ors.,<\/a> [1984] 1 SCR 104,\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.\t1577
\n(NCE) of 1987.\n<\/p>\n
    From  the  Judgment and Order dated 24.4.  1987  of\t the
\nMadras High Court in Election Petition No. 1 of 1986.
\n    Ram\t Jethmalani, Ms. Rani Jethmalani and M.G.  Ramachan-
\ndran for the Appellant.\n<\/p>\n
    R.K. Garg, S. Padmanabhan, K. Raj. Choudhary, R.  Mohan,
\nK. Chandrashekharan, R. Ayyam Perumal, V. Krishnamurthy,  S.
\nThananjayan,  K.V. Vijaya Kumar, A.V. Rangam and V.R.  Kari-
\nthi~ kayan for the Respondents.\n<\/p>\n
770<\/span><\/p>\n
The Judgment of the Court was delivered by
\n    KANIA,  J. This is an appeal from a judgment  and  order
\ndelivered by a learned Single Judge of the Madras High Court
\non  April 24, 1987 dismissing an election petition filed  by
\nthe  appellant.\t The  appellant herein\twas  the  petitioner
\nbefore the High Court and the respondents nos. 1 to 8 herein
\nwere  arraigned\t as  respondents in the same  order  in\t the
\nelection  petition. The dispute pertains to the election  of
\nsix Members to the Rajya Sabha by the elected Members of the
\nTamil  Nadu Legislative Assembly. The election was held,  as
\nscheduled,  on June 28, 1986. The appellant and\t respondents
\nnos. 1 to 7 were the eight candidates in the field, all\t the
\nnominations having been found valid. The 8th respondent\t was
\nthe Returning Officer. The polling took place, as scheduled,
\non June 28, 1986 and, immediately thereafter, the ballot box
\nwas  opened and the votes were sorted out. The election\t was
\nunder the preferential system of voting and the\t particulars
\nof  the\t first\tpreferences votes cast and  secured  by\t the
\ncandidates are as follows:\n<\/p>\n
Candidates\t\t\t\t First\t  Preference\nVotes\n1. Appellant\t\t\t\t   33\n2. 1st Respondent\t\t\t  35\n3. 2nd Respondent\t\t\t  31\n4. 3rd Respondent\t\t\t  33\n5. 4th Respondent\t\t\t   32\n6. 5th Respondent\t\t\t   34\n7. 6th Respondent\t\t\t   34\n8. 7th Respondent\t\t\t  nil\n<\/pre>\n
    Out\t of the 33 first preference votes cast in favour  of
\nthe  appellant,\t one ballot paper was rejected\tby  the\t 8th
\nrespondent,  the Returning Officer, on the ground  that\t the
\nsaid  ballot  paper was marked by the voter  otherwise\tthan
\nwith  the article supplied for that purpose. It may be\tmen-
\ntioned\there that the first preference was indicated on\t the
\nsaid ballot paper by a ball-point pen with green ink whereas
\nin  the\t ball point pen kept along with the ballot  box\t had
\nblue  ink.  The working result sheets of the  counting\twere
\nprepared and announced by the 8th
\n771<\/span>
\nrespondent.  The  particulars  of the  said  working  result
\nsheets are as follows:\n<\/p>\n
1. Appellant\t\t\t\t   3219\n2. 1st Respondent\t\t\t   3301\n3. 2nd Respondent\t\t\t   3270\n4. 3rd Respondent\t\t\t   3300\n5. 4th Respondent\t\t\t   3301\n6.  5th Respondent\t\t     3301\n7.  6th Respondent\t\t     3301\n<\/pre>\n
    In consequence, respondents nos. 1 to 6 were declared as
\nduly  elected and the appellant was declared as having\tlost
\nthe election.\n<\/p>\n
    It\tis submitted by learned counsel for  the  appellant,
\nthat  (1) the first preference vote in his favour  in  which
\nfirst preference was indicated on the ballot paper in  green
\nink  was wrongly rejected. The rejection of the said  ballot
\npaper  by the Returning Officer was duly objected to by\t the
\nappellant at the time of counting. The said ballot paper  is
\nhereinafter referred to as “the said rejected ballot paper”.
\nIf  the\t said  rejected ballot paper had  been\treceived  as
\nvalid, the appellant would have the proportionate number  of
\npreference votes and would have been declared elected.
\n    The\t second contention raised by the appellant was\tthat
\nthree  ballot papers which did not contain the figure  1  in
\nthe  space intended for marking the said figure should\thave
\nbeen  rejected\tand the same were  wrongly  accepted.  These
\nballot\tpapers\thad been used for casting  first  preference
\nvotes in favour of the first respondent and if the same\t had
\nbeen rejected, first respondent would not have been  elected
\nand in his place the appellant would have been elected. Both
\nthe mistakes according to the appellant materially  affected
\nthe result of the election.\n<\/p>\n
    Before  going into the controversy raised before us,  we
\nmay  note the relevant provisions of the Election  Law.\t The
\nelection  petition was filed under Chapter-II of the  Repre-
\nsentation  of the People Act, 1951 (hereinafter referred  to
\nas “the said Act”). Section 59 of the said Act provides that
\nat every election where a poll is taken votes shall be given
\nby ballot in such manner as may be prescribed. We are not
\n772<\/span>
\nconcerned  here with the special procedure for\tvoting\tpro-
\nvided  in certain cases provided for under section 60\tsaid
\nAct. Section leo of the said Act deals with the grounds\t for
\nduring\telections  to be void. The relevant portion  of\t the
\nsaid section reads thus:\n<\/p>\n
“100(1) Subject to the provisions of sub-section (2) if\t the
\nHigh Court is of opinion–\n<\/p>\n
(a) x\t\t\t    x\t\t\t    x\n(b) x\t\t\t     x\t\t\t      x\n<\/pre>\n
(c) That any nomination has been improperly rejected; or\n<\/p>\n
(d)  that the result of the election, in so far as  it\tcon-
\ncerns a returned candidate, has been materially affected–\n<\/p>\n
(i) by the improper acceptance or any nomination, or\n<\/p>\n
(ii)  by any corrupt practice committed in the interests  of
\nthe  returned candidate by an agent other than his  election
\nagent, or\n<\/p>\n
(iii) by the improper reception, refusal or rejection of any
\nvote or the reception of any vote which is void, or\n<\/p>\n
(iv)  by any non-compliance with the provisions of the\tCon-
\nstitution  or  of this Act or of any rules  or\torders\tmade
\nunder this Act,
\nthe  High Court shall declare the election of  the  returned
\ncandidate to be void”.\n<\/p>\n
    Conduct of Election Rules, 1961 (referred to hereinafter
\nas  “the Election Rules”) came into force on 25th of  April,
\n1961.  Rule 30 of the Election Rules prescribes the form  of
\nthe  ballot papers. Rule 31 of the Election  Rules  provides
\nfor  arrangements at polling stations. Sub-rule (3) of\tRule
\n31 runs as under:\n<\/p>\n
“(3)  the  returning officer shall provide at  each  polling
\nstation\t a sufficient number of ballot boxes, copies of\t the
\nrelevant part of the electroal roll, ballot papers,  instru-
\nments for stamping the distinguishing mark on ballot
\n773<\/span>
\npapers\tand  articles, necessary for electors  to  mark\t the
\nballot papers.”\n<\/p>\n
    Rule 39 of the Election Rules deals with the maintenance
\nof secrecy of voting by electors within polling stations and
\nthe  voting procedure. The material portion of sub-rule\t (2)
\nof that rule runs as follows:\n<\/p>\n
“(2) The elector on receiving the ballot paper shall  forth-
\nwith–\n<\/p>\n
(a) proceed to one of the voting compartments:\n<\/p>\n
(b)  there make a mark on the ballot paper with the  instru-
\nment  supplied for the purpose on or near the symbol of\t the
\ncandidate for whom he intends to vote.”\n<\/p>\n
    Rule  70 lays down rules for the conduct of\t polls.\t The
\nportion\t of  Rule 70 material for the purposes of  the\tcase
\nruns as follows:\n<\/p>\n
“(a) x\t\t    x\t\t   x\t\t  x\n<\/p>\n
(b)  to every election in a council unless voting by  postal
\nballot\thas been directed in the whole of that\tconstituency
\nunder clause (b) of rule 68,
\nsubject to the following modifications, namely:\n<\/p>\n
(i) clause (a) of sub-rule (1) of rule 31 shall not apply to
\nan election by assembly members;\n<\/p>\n
(ii)  in lieu of rules 37 to 40, the following\trules  shall
\napply:\n<\/p>\n
37A.  Method of voting. (1) Every elector has only one\tvote
\nat  an\telection irrespective of the number of seats  to  be
\nfilled.\n<\/p>\n
(2) An elector in giving his vote–\n<\/p>\n
(a)  shall  place on his ballot paper the figure  1  in\t the
\nspace opposite the name of the candidate for whom he  wishes
\nto vote in the first instance; and
\n774<\/span>\n<\/p>\n
(b) may, in addition, place on his ballot paper the figure 2
\nor the figures 2 and 3 or the figures 2, 3 and 4 and so\t on,
\nin  the space opposite the names of the other candidates  in
\nthe order of his preference.\n<\/p>\n
38A. x\t\t    x\t\t   x\t\t  x
\n39A.  Maintenance  of secrecy of voting by  electors  within
\npolling station and voting procedure–(1) Every elector,  to
\nwhom a ballot paper has been issued under rule 38A or  under
\nany  other provision of these rules, shall maintain  secrecy
\nof  voting within the polling station and for  that  purpose
\nobserve the voting procedure hereinafter laid down.
\n(2)  The elector on receiving the ballot paper shall  forth-
\nwith-\n<\/p>\n
(a) proceed to one of the voting compartments;\n<\/p>\n
(b) record his vote in accordance with sub-rule (2) of\trule
\n37A with the article supplied for the purpose.\n<\/p>\n
(c) fold the ballot paper so as to conceal his vote;\n<\/p>\n
(d) insert the folded paper in the ballot box; and\n<\/p>\n
(e) quit the polling station:\n<\/p>\n
(It  is not necessary to quote the rest of Rule 39A for\t the
\npurposes of this Judgment)
\n    It\twas submitted by learned counsel for  the  appellant
\nthat the express on “article supplied for the purpose”\tused
\nin  Rule 39A(2)(b) and Rule 73(2)(e) of the  Election  Rules
\nwas misconstrued by the High Court. It was submitted by\t him
\nthat in the context of the election law and the instructions
\ncontained in the hand-books to which reference will be\tmade
\nthat  expression should be interpreted as meaning  “actually
\ngiven” or “handed over”. In this regard, reference was\tmade
\nto instructions given to the Presiding Officer in respect of
\nelections  to Lok Sabha and State Assemblies.  The  relevant
\ninstructions  in the said hand-book provide that the  proce-
\ndure  followed in respect of the election to Lok  Sabha\t and
\nState Assemblies is that the Polling Officer or
\n775<\/span>
\nPolling Assistant must give the rubber stamp properly  inked
\nto  the voter before he proceeds into the voting  booth\t for
\nmarking\t his choice and the Polling Officer or\tPolling\t As-
\nsistant must take back the said rubber stamp from the  voter
\nafter he comes out from the voting both having cast his vote
\nand  then hand it over to the next voter and so on.  It\t was
\nurged  that  the same procedure should\thave  been  followed
\nmutatis matandis in the case of an election to the  Legisla-
\ntive Council like the one in question before us, and if this
\nwere done, it would imply that the ball-point pen for  mark-
\ning  the preference should have been personally handed\tover
\nto  the\t voter with instructions to use it for\tmarking\t his
\npreference.  This argument is not worthy of  acceptance.  As
\npointed\t out by the High Court, the nature of the  elections
\nto the Lok Sabha and the State Assemblies is different\tfrom
\nthat  of elections to a Legislative Council or\tRajya  Sabha
\nand  this difference has to be taken into account in  inter-
\npreting the relevant words used in the rules relating to  an
\nelection. The election to Lok Sabha and the State Assemblies
\nis  a direct election on the basis of a single\tmember\tcon-
\nstituency where the voter has only one choice whereas in the
\ncase of an election to the Rajya Sabha, the said election is
\nby  members of the Legislative Assemblies of the States\t and
\nthe election is an indirect election conducted on the  prin-
\nciple  of proportional representation by means of  a  single
\ntransferable vote. In the case of elections to the Lok Sabha
\nand  State Assemblies, a rubber stamp with arrow  cross-mark
\nis  provided with which the voter has to make a mark on\t the
\nsymbol\tof the candidate of his choice in the ballot  paper.
\nMany of the voters are not familiar with the election proce-
\ndure  and it is in these circumstances that the\t requirement
\nhas been provided that a rubber stamp containing the  cross-
\nmark properly inked should be handed over to each voter with
\ninstructions to use the same for marking his vote or choice.
\nIn the case of the election to the Rajya Sabha or a Legisla-
\ntive  Council,\tthe  situation is  entirely  different.\t The
\nnumber of voters is limited. One could assume that they\t are
\nreasonably  familiar with the procedure of voting;  and\t the
\narticle\t supplied for marking the preference is\t a  fountain
\npen  or\t ball-point pen. In these  circumstances,  there  is
\nhardly\tany  warrant  for requiring that  the  procedure  of
\nhanding over personally to each voter the article for  mark-
\ning  his  preference should be followed and  it\t is  quite\/’
\nadequate if the article for marking the preference,  namely,
\nthe fountain pen or ball-point pen is made available in\t the
\nvoting booth with clear instructions that the same should be
\nused  in  marking the preference. It must also be  borne  in
\nmind that there is no express rule or instruction in connec-
\ntion  with the elections to the RaRajya Sabha by Members  of
\nthe  State Assemblies or elections to the Legislative  Coun-
\ncils of States which specifically requires that the arti-\n<\/p>\n
776<\/span><\/p>\n
cle for marking the preference should be handed over to each
\nvoter  personally. In these circumstances, in our view,\t the
\nHigh Court was right in interpreting the expression “article
\nsupplied  for  the  purpose”  in  Rule\t39A(2)(b)  and\tRule
\n73(2)(e)  of the Election Rules as meaning  “made  available
\nfor the purpose” or “provided for the purpose”. Reliance was
\nplaced by learned counsel for the appellant on the  decision
\nof this Court in Ram Utar Singh Bhaduria v. Ram Gopal  Singh
\n& Ors., [1976] 1 SCR 191 and particularly, the\tobservations
\nat page 200 of the said report. We are of the view that that
\ndecision  as well as the other decisions in this  connection
\ncited before us are in connection with the elections to\t the
\nLok Sabha or the State Assemblies and have no application to
\nan indirect election like the election to the Rajya Sabha by
\nMembers of State Assemblies.\n<\/p>\n
    Rule  56  of the Election Rules deals with\tcounting  of
\nvotes.\tThe material portion of sub-rule (2) of Rule  56  of
\nthe Election Rules runs as follows:\n<\/p>\n
“56.  Counting of Votes. (1) The ballot papers taken out  of
\neach ballot box shall be arranged in convenient bundles\t and
\nscrutinized.\n<\/p>\n
(2) The returning officers shall reject a ballot paper–\n<\/p>\n
(a) x\t\t\t   x\n<\/p>\n
(b)  If it bears no mark at all or, to indicate the vote  it
\nbears a mark elsewhere than on or near the symbol of one  of
\nthe candidates on the face of the ballot paper or, it  bears
\na mark made otherwise than with the instrument supplied\t for
\nthe purpose, or\t ….  ”\n<\/p>\n
    Rule  73  deals with the scrutiny of opening  of  ballot
\nboxes  and  packets of postal ballot  papers.  The  material
\nportion of sub-rule (2) of Rule 73 runs as follows:
\n“(2) a ballot paper shall be invalid on which–\n<\/p>\n
(a) the figure 1 is not marked; or\n<\/p>\n
(b)  the figure 1 is set opposite the name or more than\t one
\ncandidate or is so placed as to render it doubtful to  which
\ncandidate it is intended to apply; or
\n777<\/span>\n<\/p>\n
(c) x\t\t\t   x\t\t\t  x\n<\/p>\n
(d) x\t\t\t    x\t\t\t    x\n<\/p>\n
(e)  there  is\tany figure marked otherwise  than  with\t the
\narticle supplied for the purpose.”\n<\/p>\n
    It\twould now be convenient to deal with the first\tcon-
\ntention of the learned counsel for the appellant. As we have
\nalready\t pointed  out, the said rejected  ballot  paper\t was
\nrejected  on  the ground that it was marked  otherwise\tthan
\nwith an article supplied for the purpose. As we have already
\npointed out, the figure 1 indicating the first preference in
\nthe said ballot paper was marked in green ink whereas in the
\nball-point pen kept in the voting booth with the ballot box,
\nthe  ink used was blue. The returning officer took the\tview
\nthat  the  said marking of preference in green\tink  clearly
\nestablished  that  it was done with a bail-point  pen  other
\nthan  the one which was supplied for marking the  preference
\nand  hence the vote was invalid. It was urged by Shri  Jeth-
\nmalani\tin  this  connection that although  the\t marking  of
\npreference  was done in green ink, there was no\t doubt\tthat
\nthe  intention of the over concerned was to give  the  first
\npreference  vote to the appellant. It was submitted  by\t him
\nthat  the  fundamental rule of election law is\tthat  effect
\nshould be given to the intention of the voter and this could
\nbe done only by treating the vote as valid, as the intention
\nof  the voter was quite clear. Mr. Jethmalani may  be  right
\nwhen  he contends that the intention of the voter  could  be
\nclearly\t gathered  and it was to cast the  first  preference
\nvote  for the appellant. However, it is not enough  for\t the
\nvote to be valid that it is possible to gather the intention
\nof  the voter to vote for a particular candidate as  pointed
\nout  by the Constitution Bench of this Court in the  leading
\ncase of Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others,<\/a>
\n[1955]\t1  SCR\t1104 at page 1132. This Court  held  that  (
\n1132):\n<\/p>\n
“But  when the law prescribes that the intention  should  be
\nexpressed  in  a  particular manner, it can  be\t taken\tinto
\naccount\t only if it is so expressed. An intention  not\tduly
\nexpressed is, in a court of law, in the same position as  an
\nintention not expressed at all.”\n<\/p>\n
    In the present case Rule 39(2)(b) which is applicable to
\nthe election petition before us clearly prescribes that\t the
\nvote  must be cast by the voter in accordance with the\tsaid
\nsub-rule  (2)  of Rule 39 of the Election  Rules,  with\t the
\narticle\t supplied for the purpose. Rule 39A(2)(b) read\twith
\nRule 37A(2)(a) prescribes that an elector in giv-\n<\/p>\n
778<\/span><\/p>\n
ing his vote shall place on his ballot paper the figure 1 in
\nthe  space  opposite the name of the candidate for  whom  he
\nwishes\tto vote in the first instance with the article\tsup-
\nplied for the purpose. Hence, unless the ball-point pen kept
\nwith  the  ballot box is not to be regarded as\tthe  article
\nsupplied  for marking the preference, the intention  of\t the
\nelector in the present case cannot be given effect to as  it
\nwas  expressed in a manner inconsistent with the  provisions
\nin  the rules. Clause (b) of sub-rule (2) of Rule 56 of\t the
\nElection  Rules provides inter alia that if a  ballot  paper
\ncontains  a mark made on it otherwise than with the  instru-
\nment  supplied for the purpose, the returning officer  shall
\nreject\tthe said ballot paper. Rule 73 is included  in\tPart
\nVII  of\t the  Election Rules and that Part  applies  to\t the
\ncounting  of votes at elections by Assembly members.  Clause\n<\/p>\n
(e) of sub-rule (2) of Rule 73 of the Election Rules set out
\nearlier that a ballot paper shall be invalid on which  there
\nis  any figure marked otherwise than with the  article\tsup-
\nplied for the purpose. Rule 73 is directly applicable to the
\ncase  of the election in question and as aforesaid  it\tpre-
\nscribes\t that  if on the ballot paper there  is\t any  figure
\nmarked\totherwise  than with the article  supplied  for\t the
\npurpose,  the ballot paper shall be invalid.  Assuming\tthat
\nthe  voter in this case had expressed his intention  clearly
\nby marking the figure 1 in green ink, he did so in violation
\nof the express provisions of the Rules which have a statuto-
\nry force and hence no effect can be given to that intention.
\n    It\twas next argued in this connection that the  expres-
\nsion “article supplied for the purpose” as used in the\tsaid
\nRules 39A(2)(b) and 73(2)(e) was misconstrued by the Presid-
\ning  Officer and the High Court in the present case. It\t was
\nsubmitted  by  learned counsel for the appellant  that\tRule
\n56(2)(b)  was not complied with by making a  ball-point\t pen
\navailable in the polling compartment near the ballot box for
\nthe  use of the electors in marking their preference as\t law
\nrequired  that\tthe Polling Officer should  personally\thand
\nover  the bali-point pen to the voter before he proceeds  to
\nthe  voting booth with instructions to mark  his  preference
\nwith  that  ball-point\tpen. He referred  to  the  hand-book
\ndealing\t with the procedure prescribed in elections  to\t the
\nLok  Sabha and to the Legislative Assemblies  and  submitted
\nthat  the said procedure was applicable mutatis mutandis  to
\nelections  to the Rajya Sabha and the Legislative  Councils.
\nIt was urged by him that the second proviso to clause (e) of
\nsub-rule (2) of Rule 73 of the Election Rules provides\tthat
\nif  the returning officer is satisfied that any such  defect
\nas  is mentioned in the said clause has been caused  by\t any
\nmistake\t or  fault on the part of the Presiding\t Officer  or
\nPolling\t Officer,  the ballot paper shall  not\tbe  rejected
\nmerely on the ground of the said defect. It was contended by
\nhim that the Polling Officer was bound to hand over to
\n779<\/span>
\neach  voter individually the ball-point pen to be  used\t for
\nmarking\t his  preference on the ballot paper.  He  submitted
\nthat  the duty of the Polling Officer was to hand  over\t the
\nball-point pen to the voter to use the same for marking\t his
\npreference  and it was also his duty to take back  the\tsaid
\npen from the voter after he has cast his vote and given\t the
\nsame  to  the next voter. He urged that merely\tproviding  a
\nbail-point  pen\t for voting did not  constitute\t substantial
\ncompliance  with Rule 39A(2)(b) or Rule 73(2)(e).  He  urged
\nthat the mistake in the present case, namely, marking of the
\npreference with green ink on the ballot paper, had  occurred
\nbecause\t no bail-point pen was handed over as  aforesaid  to
\nthe  voter concerned. We are unable to accept  this  submis-
\nsion. The procedure followed in an election to the Lok Sahba
\nor the State Assembly is to give to the voter a rubber stamp
\nfor  voting with an arrow mark properly inked with  instruc-
\ntions to use the same for voting before the voter enters the
\nvoting\tcompartment to put his mark against the name of\t the
\ncandidate for whom he desires to vote and to take the rubber
\nstamp  back from the voter when he comes out of\t the  voting
\ncompartment  and to repeat this process for every voter.  In
\nthe first place, it must be noticed that there is no rule or
\nstanding order requiring the Presiding Officer or to  follow
\nthis procedure in the case of an election to the Rajya Sabha
\nor  Legislative\t Council  of a State. There  is\t a  material
\ndifference between an election to Lok Sabha or a Legislative
\nAssembly  which is a direct election with  one\tconstituency
\nfor each seat and only vote is to be cast and an election to
\nRajya Sabha which is an indirect election with the preferen-
\ntial  system  of voting. Sub-rule (2) of Rule  39  which  is
\napplicable  to\tsuch an election to a  Legislative  Assembly
\nprovide\t that the elector on receiving the ballot paper\t has
\nto  make  a  mark on the ballot paper  with  the  instrument
\nsupplied for the purpose on or near the symbol of the candi-
\ndate for whom he intends to vote. It is only in the case  of
\nan election like this that it becomes necessary to provide a
\nrubber stamp properly inked to the voter to mark his prefer-
\nence.  It must be remembered that in such an election  case,
\nthe number of voters or electors is extremely large and many
\nof  them might be unfamiliar with the voting  procedure.  An
\nelection to the Rajya Sabha, on the other hand, is an  indi-
\nrect election with multiple candidates’ constituency and the
\nsystem\tof  voting followed is the  preferential  system  of
\nvoting.\t Rule 37A of the Election Rules which is  applicable
\nto such an indirect election by virtue of the provisions  of
\nRule  70 provides that an elector in giving his\t vote  shall
\nplace on his ballot paper figure 1 in the space opposite the
\nname  of  the candidate for whom he wishes to  vote  in\t the
\nfirst  instance. This difference in the case of an  election
\nto  the\t Rajya Sabha makes it wholly  unnecessary  that\t the
\nPresiding Officer or the Polling Officer should hand over to
\n780<\/span>
\nevery  voter individually a bail-point pen to mark his\tvote
\nand  it\t would quite wholly be adequate if the\tarticle\t for
\nmarking the preference, namely, a ball-point pen, is provid-
\ned  to the voter to use the same for marking his  preference
\nor  if the pen is placed in such a way as to make  it  clear
\nthat  the marking of the preference is to be done with\tthat
\npen  and instructions given to use that pen for marking\t the
\npreference. The evidence of the returning officer, which has
\nbeen accepted by the High Court is to the effect that  there
\nwere  two  voting compartments in the polling booth  and  in
\neach of them a ball-point pen with blue ink was kept as soon
\nas  an\telector\t went into the polling\tbooth,\tone  Polling
\nAssistant  gave\t him his identity slip and  another  Polling
\nAssistant  gave to the elector printed copies of  Rules\t 37A
\nand 39A of the Election Rules and a copy of the\t guidelines.
\nThen  the  elector  went to the first  Polling\tOfficer\t who
\nobtained  his  signature in the counter-foil of\t the  ballot
\npaper  and  instructed the elector that he should  mark\t his
\npreference on the ballot paper with the article kept for the
\npurpose\t inside\t the  voting  compartment.  Another  Polling
\nOfficer\t gave  the ballot paper to the voter and  again\t in-
\nstructed him to go into the voting compartment and mark\t the
\nballot\tpaper with the article kept there for that  purpose,
\nfold the ballot paper before coming out and put in into\t the
\nballot box in front of the Polling Officer. In the light  of
\nthis  evidence, we are of the view that the  ball-point\t pen
\nwith blue ink kept in the voting compartment for marking the
\npreference must be regarded as the article supplied for that
\npurpose, namely, the purpose of the voter marking his  pref-
\nerence\ton  the ballot paper. It was  submitted\t by  learned
\ncounsel for the appellant that it was possible that a  voter
\nmight  have used his own pen if the pen kept in\t the  voting
\ncompartment  was not working and such a vote cannot  be\t re-
\ngarded as invalid. We are not concerned with a case of\tthat
\nkind  here as there is no evidence that in any\tvoting\tcom-
\npartment  the ball-point pen kept there was not working.  It
\nwas  next urged that if a voter had used another  ball-point
\npen, that is, other than the one kept in the voting compart-
\nment containing the blue ink, it would not have been  possi-
\nble  to\t find  out that the preference marked  with  such  a
\nbail-point pen had been used for marking the preference\t and
\nnot  the  pen supplied. This is of no  relevance  here.\t The
\npossibility  that in a given case a breach of the rules\t may
\nbe  difficult to detect cannot lead to the  conclusion\tthat
\nthe  mandatory\trequirement that preference  on\t the  ballot
\npaper  must  be\t marked with the article  supplied  for\t the
\npurpose\t should be regarded as not binding in law.  We\tare,
\ntherefore, of the view that the said ballot paper was right-
\nly rejected by the returning officer and the arguments urged
\nby learned counsel for the appellant in that contention must
\nbe rejected.\n<\/p>\n
781<\/span><\/p>\n
    The\t next point is regarding the three first  preference
\nvotes cast in favour of respondent no. 1 which were accepted
\nby  the returning officer as stated earlier. In\t respect  of
\nthese  three  votes,  the figure 1 is  marked,\tnot  in\t the
\nright-hand column opposite the name of respondent no. 1, but
\nin the left-hand column containing the name of candidate and
\nopposite the name of respondent no. 1. The appellant  unsuc-
\ncessfully  objected  to the validity of these  three  ballot
\npapers on the ground that the first preference had not\tbeen
\nmarked\tin the space provided for that purpose opposite\t the
\nname  of the candidate concerned, namely, respondent no.  1,
\nas  required  by Rule 37A(2). It was  submitted\t by  learned
\ncounsel for the appellant that the returning officer as well
\nas  the\t High Court were in error in holding that  the\tsaid
\nthree  ballot papers were valid. We propose to discuss\tthis
\ncontroversy  very shortly because we are in  full  agreement
\nwith  the reasoning and conclusions given by the High  Court
\nin  its impugned judgment in coming to the  conclusion\tthat
\nthe returning officer was justified in rejecting the  objec-
\ntions preferred by the appellant to the said three votes and
\nholding\t that the same were valid. The relevant\t portion  of
\nRule  37A(2) of the Election Rules has already\tbeen  quoted
\nearlier.  Clause (a) of sub-rule (2) of that Rule only\tpro-
\nvides  that  the voter shall place on his ballot  paper\t the
\nfigure i in the space opposite the name of the candidate for
\nwhom he wishes to vote in the first instance. it is signifi-
\ncant  that  this  rule does not specifically  say  that\t the
\nfigure 1 must be placed in the column earmarked for  marking
\nthe preference but only requires that the figure 1 should be
\nplaced\topposite the name of the candidate. Sub-rule (4)  of
\nRule 71 which is a definition runs as follows:
\n“71(4):\t ‘first preference’ means the figure 1 set  opposite
\nthe  name  of  a candidate; ‘second  preference’  means\t the
\nfigure 2 set opposite the name of a candidate; ‘third  pref-
\nerence’ means the figure 3 set opposite the name of a candi-
\ndate, and so on;”\n<\/p>\n
    It\tis significant that in this sub-rule also  there  is
\nnothing to indicate that the preference must be indicated in
\nthe  column reserved for that purpose, the only\t requirement
\nbeing that the figure 1 should be written opposite the\tname
\nof the candidate. Similarly, sub-rule (2)(b) of Rule 73 only
\nlays  down that if the figure 1 is set opposite the name  of
\nmore  than  one candidate or is so placed as  to  render  it
\ndoubtful  to  which candidate it applied, the  ballot  paper
\nwould  be  invalid. Sub-rule 12) of Rule 73 deals  with\t the
\ninvalidity of ballot papers and that subrule nowhere  states
\nthat merely by reason of the preference being
\n782<\/span>
\nmarked\tin the wrong column, if the marking is opposite\t the
\nname  of the candidate concerned, the ballot paper shall  be
\nrendered  invalid. It is true that the column in  which\t the
\npreference  should  have been marked and intended  for\tthat
\npurpose\t was the column on the righthand side of  the  first
\ncolumn\twhere the name of the candidate was to be  put;\t but
\nthere is no express provision to the effect that unless\t the
\npreference is marked in the correct column, the ballot paper
\nwould be invalid. In such a situation, the principle enunci-
\nated by this Court in several judgments and reiterated in S.
\nSivaswami v.V. Malaikannan & Ors., [1984] 1 SCR 104 that the
\nprimary\t task of the Court in a case where the\tquestion  is
\nwhether\t the  ballot paper is invalid is  to  ascertain\t the
\nintention  of the voter, must be applied. In that case,\t the
\nCourt  held that the ballot paper shall not be\trejected  as
\ninvalid\t if it is reasonably possible to gather\t a  definite
\nindication from the marking so as to identify the  candidate
\nin  favour of whom the vote had been intended to  be  given.
\nThis, of course, is subject to the rule that before a ballot
\npaper  is  accepted as valid the ballot paper  must  not  be
\ninvalid under any other express provision and the  intention
\nof  the\t voter must not be expressed in a  manner  which  is
\ncontrary  tO  or totally inconsistent with the\tmanner\tpre-
\nscribed\t under\tthe said Act or the Election Rules  for\t ex-
\npressing  the same. In the case of the said, three votes  in
\nquestion, the figure 1 was clearly marked opposite the\tname
\nof  respondent\tno.  1, being the  candidate  concerned,  as
\nrequired  by the express provision of the said Rule 37A\t and
\nthe  intention\tof the voter was clearly to cast  the  first
\npreference  in favour of respondent no. 1. In these  circum-
\nstances,  the  ballot papers were rightly  accepted  by\t the
\nreturning officer as valid and the High Court was  justified
\nin coming to the conclusion to which it has arrived.
\n    In the result, the appeal fails and is dismissed. Howev-
\ner,  considering  the facts and circumstances of  the  case,
\nthere will be no order as to costs.\n<\/p>\n
R.S.S.\t\t\t\t\t\tAppeal\tdis-\nmissed.\n783<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Era Sezhiyan vs T.R. Balu And Ors on 1 March, 1990 Equivalent citations: 1990 AIR 838, 1990 SCR (1) 767 Author: M Kania Bench: Kania, M.H. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-180080","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nEra Sezhiyan vs T.R. 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