SHRADHA DEVI v. KRISHNA CHANDRA PANT & OTHERS (2)

Citation: [1983] 1 S.C.R. 681

Court: Supreme Court of India

Bench: D.A. DESAI, A.P. SEN

Case summary

These are techanical terms each having' bearing on the question of countiμg of votes. To the question as to why votes were rejected as invalid it is alleged that the Returning Officer informed the counting agents · that there were marks and cuttings in.

Judgment text

SHRADHA DEVI v. KRISHNA CHANDRA PANT & OTHERS October 26, 1982 [D. A. DESAI. AND A. P. SEN, JJ. ] Representation of the People Act, 1951-E/eciiOn Petition-Elector's duty- Nature ofproof--Required for a relief ofsCrutiny and recount on the a/legation ofmiscount in an election 'petition. The appellant was one-of the 19 candidates for the 11 members to be elected at the biennial election for electing members to ,Council of States from the ! I"'! consti1uency of el~cted m~mbers of the Uttar Prad"'sh Legislative Assembly, at the election held on 28th March, 1979. ' ,The election was to be in accOrdance with the ·sYstem of proportional representation by means of single trans_fcrable ~ote. Io all 421 members exercised their franchise. Eleven ballot papers were rejected by tbe returning officer as inValid and the 1st Respondent was declared elected in tbe'14th count. The appellant, thereupon, filed an election petition Under section 81 of the . J.

951 Act before the Lucknow Bench· of the Allahabad High Cou'rt for Scrutiny and ·recount· on the allegation of miscount. The appellant alleged that (i) ~he result of the election in so far as it co~cerns the returned candidate {i. e. )~ . Jst . respondent-has been materially affected by the improper rejectiori of valid votes· by wrongly declaring them invalid as weIJ as by improper reception of what other~ wise would haVe been the invalid vote's if the Return-i,ng Officer had been consitent in his approach, and, therefore, the election of the returned candidate not only shquld be declared void but in bis· place bf a proper computation oi'votes, the . petitioner sho1,dd be. declared elected to·the 1Ith vacancy, (ii) there had been an :in1prOper rejection of the valid votes cast in her favour and that 'has materially . , ;affe~ted the result. of the election; and (iii) even though it was obligatory upon :the Returning Offic.

er to sho'w all the ballot papers 'Yhich be rejected as invalid, to the candidates and/or their counting agents, he· only showed four out of the eleven ballot papers heJd invaiid by him and did not show the rest of. them. Even these four were wrongly rejected and cannot be said to •be covered. by . Rule 73(2)(d) of the Election Rules. The High Court dismissed the election petition and hence the appeal by special le~ve. The appellant contended that {i) where the election is to be held in accor- H' dance with. the system of . Proportiopal .

representation by means of the single transferable vote, if the μrst preference is properlr ~pg w;cerlainably cast any error in setting oUt the reinaining preferences would not enable the Returning Officer to reject the whole ballot paper;· and (ii) every unrequired mark, cutling, erasure cannot tantamount to any indication which would enable the voter to be identified but the writing or mark roust De such that the veter can be and not merely might be identified and there is no such cutting mark or erasure within the meaning of Rule 73(2)(d) of the Conduct of Election Rules; 1961. 8 Allowing the appeal, the Court HELD: 1:1. When a petition is for relief of scrutiny and recount on the allegation of miscoutit, the petitioner has to offer prima facie proof of errors in counting and if errors in counting. arc prima facie established, a recount can be ordered. If the allegation. is of improper rejection of valid votes which is covere.

d by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some Crrors in respect of ~ome b81lot papers·, scrutiny and recount cannot . be limited to those ballot papers only. If the recount is limited to those ba11ot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituehcy where rnore often_l0,()00 or more vo1es a1e re. ltcted as invalid. [690 A-C] ( 1:2. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. This is not the area of inquiry 0 in a petition for relief of recount on the J? ,round of n1iscount.

True it is that 'a recount is not granted as of ·right, but on evidence of good grounds for believing that there has been a mistake on the part of_. Returning Officer. Prima facie proof or errOr complained of must be given by the election petitioner and it'must further be shown that the errors a! e of such q:iagnitude that the result of the election so far as it affects the returned candidate is materi31ly affected, then recount is directed. [6_90 C·E] 1:3, It is not the requirement of law that in respect of each baJJot paper rejected as invalid a specific averment must be so mar'e as to identify the ballot paper and the only those that can. be correlated to the allegations in the petition specifically and not generally shiill be recounted. Tbat is ·contrary to the requirement of the Act and the ,Ruies. [6? 1 B-C] . 2:1.

A combined reading of Rules 37A(I), 73(2)(a) and 73(2)(b) of the conduct of Election Rules 1961, makes clear that when voting is in accordance with the praportional representation by means of the single transferable vote it is obligatory to cast" the first preference vote fcir ensuring the validity of the ballot paper and the first preferenee vote must be so cast as not to leave any one in doubt about it. The remaining preferences are optional with the elector. He may or may not exercise his franchise for the remaining preferences, Rule 73(2) is exhaustive of the grounds on which a ballot paper at a votir. g at election by Assembly members shall be rejected as invalid and on a true and indepth r~adin~ of it, it· does· nl)t transpire that the SHRADHA DEVI v. K. C. PAN1' 683 failure to cast the remaining preferences wou1d invalidate the ballot papers. This. is so because under rule 37A(l) every elector has· only one vote at an election irrespective of the Dumber of seats io be filled.

The vote is only one and even if there is more than one seat to be filled in, subseqtient preferences may be indicated -by the elector and it is optional with him not to exercise preferences outside his only one vote which he must cast by indicating unambiguously bis first preference. [695 D-G] 2:2. If there is only .. one vote at such an election and the preferences are as many as there are seats chronologically to be indicated and failure to exercise preferences subsequent ~o first preference would not invalidate the ballot paper, it must fo! Jow as a corotlary that if the elector has ~ommitted some error in exercising his preferences lower down the ladder . the whole of the ballot paper cannot be rejected as invalid. Thei'efore, it must follow that not only such a ballot paper has to be -held as valid baUot paper but its validity shall continue upto the stage iO preferences where an error or confusion transpires which would not perlnit computation of subsequent prCferences .

below the level of error. To illustrate the point~ if as in the present case the voter had option to exercise 11 preferences atid if he has exercised his prefereQces 1 to S correctly and unambiguously and has eommitted an error in exercising sixth preference and it cannot be said with certainty for whom the sixth preferences vote was cast, the ballot paper has to be held valid in computation of votes upto and' inclusive of the fifth preference and ·rejected for the preferences down below as if the elector has not exercised his further preferences which wlls opt. ional with him. The ballot paper can thus be partially valid ·and this is the logical out~ -. come of the system of voting. [695. F-H, 696 A-C-EJ 3:1.

Free and fair election being tbe fountain source of Parliamentary de~ocracy attempt of the Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers "as invalid under the slightest pretext but serious attempt should be made before rejccti~g ballot papers as invalid to ascertain, if possible, whether the elector has cast his vote with sufficient cl8rity revealing his intendment. In this cil. se, the Returning Officer has charted an easy course unsupportable by evidence and the High Court failed to exercise its jurisdiction of scrutiny of all ballot papers Once a serious error has been pointed out in respect of two ballot papers out of a total of 11· invalid ballot papers. [700 E-GJ .. 3:2. Rule 73(2)(d), provides that a ballot paper shall be inValid on wbich, • there iS: any m"ark or writing by . which the elector can be identified.

Section 94 of the Representation of People Act, 1951 ensures secrecy of ballOt and it cannOt be infringed because ~o witness or ot! Jer p6rson shaH be required to state for whom he has voted'at an election. To ensure free and fair election w. hich is piv tal for setting up a parliamentary democracy, this vital principle was enacted in s: 94 to ensure that a voter would be able to vote uninhibited by any fear or any undesirable consequence of disclosure of bow he voted. As a corollary it is provided ! hat if there is any mark or writing on the ·baUot paper whicb. enables the ~l~i;:h? r t December 5, 1979. •. Thereafter the parties went to trial. Neither the unsuceessful candidate, ihe petitioner, . nor the Ist respondent, the returned candidate, stepped into the witness box. On behalf of the petitioner PW. 1 Shri Shakir Ali Siddiqi, PW. 2 Udit Narain Sharma, election agent of candidate Shri Surendra Mohan, and PW. 3 Kalpnath Singh election agent of . the petitioner were examined. RW.

1 Habibul Rahma~. Nomani, counting· ·agent of Smt. Manohara, RW. 2 Deo Bahadur Singh, election agent of the returned candidate ! st respondent, RW. 3 Prabhat Kumar Misra, observer deputed by the Election Commission and. RW. 4 Satya Priya. Singh, Returning Officer were examined on °behalfof the returned candidate. · The learned Judge rejected the petition substantially holding th. at the petitioner has failed to prove that all eleven rejected ballot papets·were not shown to the counting agel\ts. It was held that petitioner failed to prove such error in counting which would enable her to seek relief of scrutiny'and recount. In reaching this conclusion, with great respect, the learned judge has completely misqireted himself as to the nature of proof ~equired for a relief of scrutiny and recount on the allegation of miscount. The learned Judge first to~k up the allegations of ~rrors in.

counting, more particularly directed io the allegation of improper rejection of valid votes which would materially affect the result as set out in paras 14, 15, 17 and 18 of the petition, and then through the help of the Joint Registrar excluded the nine ballot papers without giving inspection and ·only \ . , ' took into consideration two ballot papers which answered the error as complained of and then proceeded to hold that even if these two ballot papers rejected as invali 5 will have to he taken into account while computing the votes. We specifically invited learned counsel on ·both sides to assist us in examining this aspect as we were treading . on an uncovered - ground. In fact, we adjourned the matter to enable Mr. Chauhan, learned counsel for the petitioner and Mr. A. K.

Sen, learned counsel for the respondent to study the problem and 11t the resumed hearing ii was not only not disputed but unambiguously conceded that in view ·of the provision contained in rule 37A read with rule 73 (2) once the first preference vote has been clearly ,and unambiguously exercised the ballot paper cannot be rejected on the ground that lower down the ladder there was some error in e~e~cising the subsequent preferences. If this is the correct -interpretation of. ruie 37A, it must follow that not only such a ballot paper has to be held as valid ballot paper but its validity shall continue up to the stage in preferences where an error or confusion 'transpires which would not permit computation of subsequent preferences below - the level . of error. To illustrate the point, . if as in the present case the voter had option .

to exercise '11 Preferences and if he has exercised his preferences I to 5 correctly and unambiguously and has committed an erro~ in exercising sixth pre· ference and it cannot be said with ce~tainty for whom the sixth • preference vote was cast, the ballot paper has to be held valid in computation of votes up to and inclusive of the fifth preference and rejected. for the preferences down below as if the. elector has · not exercised his furtl]er preferences which was optional with him. The ballot paper can thus be partially valid. This is not a startling proposition but is the logical outcome of the _system of voting. No authority is needed in support of it but one is required it is to be found in the statement of law in paragraph 636, page 345, Vol. 15 of the Halsbury's Laws of England, 4th ,Edn. It may be. extracted : "63_6.

Ballot papers rejected in part-Where ai a local government election or poll ·consequent on a parish or community meeting the voter is entitled to vote for more • than· one candidate or at a poll consequent on a parish or community meeting on more thab one question, a ballot paper is not to be deemed to be· void for uncertainty as respects any vote as to which no \mcertainty ll)"ises and that vote is to be counted". .. We have examined this aspect in depth because out of 11 invalid l;>allot papers which we hav~ ml\rked pow in tJie Xerox copie& SHRADHA DEVI v. IC. c. PANT (Desai, J. ) 697 from 'A' to 'K' for identification, ballot paper marked 'B' has been rejected under rule 73 (2) (bl by the Returning Officer on the ground that firgure I appears against two candidates J. P. Singh and Surendra Mohan. The High Court has accepted the rejection as valid.

It is difficult to accept this view of the Returning Officer affirmed by the High Court because figure I has been clearly marked against the candidate- Surendra Mohan and the ligure 11 is noted -against the candidate J. P. Singh. There is some. overwriting in the two strokes of 11 but it must be remembered that explanation appended to rule 37A permits that the figures indicating preferences may be marked in the international form of in Indian numerals or in the Roman form or in the form used in any Indian language but shall not ·be indicated in wor_ds. All other figures indicating the preferences have been written in Hindi numerals and 11 is by two strokes having the loop at the top ,slightly overwritten but the preference is the 11th preference against J. P. Singh, is indisputa-ble and is clearly visible to the naked eye. Obviously this ballot pap~r marked 'B' could not have been rejected oo the ground . , mentioned in rule 73 (2) (b). ' ...

We may now turn to remaining nine ballot papers. Remaining nine ballot papers have been rejected on the ground that by some mark on the ballot paper itself. the voter can be identified. There is a specific allegation to that effect in para 18 of tb_e election petition. Before we examine each individual ballot paper, let the full import of the provision be made clear. Rnle 73 (2) (d) provides that a b_allot paper shall be invalid on which there is any mark or writing by which the elector can be identified. Section 94 of the · 1951 Act ensures secrecy of ballot-and it cannot be infringed because no witness or other person shall be required to state for whom he . has voted at an election. Section 94 -\vas interpreted by this Court 1 on Raghbir Singh Gill v.

Gurcharan Singh Tohra & Ors ,( ) to confer a privilege upon the voter not to be compelled to disclose' how and for whom he voted: To ensure free and fair election which is · pivotal for setting up a parliamentary democracy, this vital principle was enacted in s. 94 to ensure that a voter would be able to vote uninhibited by any fear or any undesirable consequence of disclosure o(how he voted. As a corollary it is provided that if there is any mark or writing on the ballot paper wb,i~h enables the ~1. e~to~ (1) (1980] 3 S. C. R. 1302. [1983] I s. c. R. to · be identified the ballot paper would . be rejected as invalid. But the mark or writing must , be such as would unerringly . lead to the identity of the voter. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the· level of such . suggestive m~rk or writing as to reveal the 1 identity of the voter. In Wodward v. Sarsons & Anr.

,( ) interpreting an identical provision it was observed as under : "Itis ilot every writing or every mark besides the number on the back which is to make the paper void, but only such a writing or mark as is one by which the * voter can be identified". ' It would imply that there must be some causal connection between • · the mark and the identity of the voter that looking at one the other becomes revealed. Therefore,, the mark or a writing itself must reasonably give indication of the voter's identity. It may be that there must be extrinsic evidence· from which it can be inferred .. that the mark was placed by the voter by' some arrangement, In this context one can advantageously refer to the statement' of law in 2 Halsbury's Laws of England. ( ) It may be extracted : , ' ' "634.

Ballot papers rejected for marks of identification-Any ballot paper on wbiCb anything is written or ' marked by which the voter can be identified, except the printed number on the back,, is void and must not be counted. The writing or mark' must be such that the. vot~r can be,. and not merely might possibly be, identified" "As respects ballot papers ~hich have names, initials, figures or other possible marks of identification on them by which it might be suggested that the voter could be identified, it has been said that the 'court should look at the paper and from its own opinion whether what is there has • been put there by the voter for 'the purpose of indicating for whom be votes; if the voter bas not voted in the proper way (if for examble he has made two crosses, or some other such marks which might have been intended ... ' (! ) [1874-75]')0 LR. (Common Pleas) 733. m4thJldp, Vol, 15, para. 634. SHRADHA DEVI v. K. c. PANT (Desai, J.

) 699 for purposes of identification), but the Court comes to the conclusion on looking at the paper that the 'real . thing that - the voter has been doing is to try, badly or mistakenly, to . give his vote, and make it clear for whom he voted; then these marks should not be considered to be marks of identification unless there is positive evidence of some agreenient to show that it was so". In Woodward's -case -the Court came to the conclusion that the · placing of two crosses or three crosses or a single stroke in line of ·a cross or a straight line or a mark like imperfect letter 'P' in -addition to the cross or star instead . of a cross or a cross blurred or marked with. a . tremulous hand, or a cross placed on the left. side of the ballot paper, or a pencil line drawn through the name of. the candidate not voted for, or a ballot. paper torn longitudinally through the centre, are not marks which would invalidate the votes on the ground that the. mark was such that the voter .

can he identified. ' • Similarly, Election Tribunal in Sohan Lal v. Abinash Chander 0 1 & Ors. ,( ) held that _addition. of a horizonai line after figure I indicating first preference vote would not invalidate the ballot paper, unless there was evidence that the horizontal line was drawn so ·as to reveal the identity of the voter. In the absence of any such evidence the ballot paper was held valid. It would, therefore, follow-that the niark or wriring which . would invalipate the ballot paper must be such as to unerringly point in the direction of identity of the votor. In the absence of such suggested mark or writing the ballot paper cannot . be rejected merely because there is some mark or writing on _the ground that by the mark or writing the voter may be identified. One has to bear in m. ind the difference between 'can be identified. ' and 'might possibly be identified'. The High Court did not examine the other 9 ballot.

papers on the erroneous view that only two were correlated 'to the averments in the plaint. There was specific averment in para 18 of the petition . · that the marks were not such as'to lead to identity. of the elector . and that the ballot papers could not be rejected as invalid under rule 73 (2) (d). This allegation is wholly substantiated by a • casual look at the remaining nine ballot papers. The error is apparent. Once the error has been estblishell tl! ~ ~nitiny and H. (1) (1953] 4 Election Law Report~ 5~ 700 . SUPREME COURT RBPOTS (1983] l S. C. R. recount had to be ordered as a prima facie case of miscount is made out and, therefore, the decision of the High Court is liable to be set aside. At one stage we were inclined to examine the validity of each ballot paper. But as the High Court has not undertaken that exercise it would not be proper for us to undertake the same for the first time here.

The position of law having been made very clear, namely, that once an error is established it is not necessary that the pleadings must show error in respeet of each individual invalid ballot paper, and prima facie pr~of of error resulting in miscount having been established, a scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede the recount. It is furrher made clear that wher7 voting is in accordance with · the proportional representa. tion by the single transferable vote a ballot paper can be valid in part. And it must be remembered that. every mark or writing does not result in invalidation of the vote The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available. There is no such .. ' evidence. ·Therefore, the ballot p~pers could not have been rejected on the ground mentioned in rule 7,3 (2) (d),.

such marks being in this case some eras. ires or a brack~t. Free and fair election being the fountain source of Parliamentary democracy attempt of ! he Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers as' invalid under the slightest pretext but serious attempt should be made before rejecting ballot papers' as invalid to ascertain, ifpossible, whether the elector has cast his vote with sufficient clarity revealing his intendment. In this case we are satisfied that the Returning Officer has charted an easy course unsupportable by evidence and the High Court failed to exercise its jurisdiction of scrutiny of all ballot papers once a serious error has been pointed out in respect of two • I ballot papers out of a to. ta! of 11 invalid bollot papers: Therefore, \ we find it difficuit to accept the vi~w taken by the High Court.

Accordingly, this appeal is allowed and the judgment and order of the High Court are set aside and 1he matter is remanded to the High Court for further proce~ding accordin~ to law. The High Court shall examine all invalid ballot papers, ascertain the reasons for the rejection, satisfy itself whether the reason is valid or un- . convincing, and decide the validity 'of the ballot paper as a whole or in part and direct computation of the votes over again. The Hij! b Court may bear in mind that the decision of the Returning siiRAOiiA DEVI v. K. C. PANT (Desai, J. ) ? bi Officer rejecting ballot papers as invalid is subject to review of the High Court in a proper election petition (See Halsbury's Laws of , England, para §38, page 345, Vol. 15, 4th Edn. ).

' It would be open to the High <:;curt to take assistance of the Chief Electoral Officer or such other person well versed ·in computing the votes in this complicaied system of counting as considered necessary to determine the final outcome of recount. As the matter has been delayed sufficiently, we hope that the High Court would expeditiously dispose of the same. The costs of the hearing in this Court would abide the final outcome of the appeal. S. R. Appealallow~d. • , ' • " • •