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PETITIONER: NARENDRA MADIVALAPA KHENI

       Vs.

RESPONDENT: MANIKRAO PATIL & ORS.

DATE OF JUDGMENT28/07/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. KRISHNAIYER, V.R.

CITATION:  1977 AIR 1992            1978 SCR  (1) 208  1977 SCC  (4) 153

ACT: Representation  of  the  People  Act,  1950  s.  23(3)   and Representation  of  the  people   Act,  1951-Ss.  33(4)  and 123(7)-Inclusion of names in the electoral roll after 3 p.m. of the last date for filing nominations-Effect  of-Collusion with electoral officer alleged but not proved-If amounts  to corrupt practice.

HEADNOTE: Article 171(3) of the Constitution of India provides that of the total number of members of the Legislative Council of  a State  one-third shall be elected by electorates  consisting of members, among others, of local authorities in the  State as   Parliament  may  by  law  specify.   Part  IV  of   the Representation  of  the People Act, 1950  which  deals  with electoral  rolls for council constituencies provides  in  s. 23(3)  that no amendment, transposition or deletion  of  any entry  shall  be made under s. 22 and no direction  for  the inclusion of a name in the electoral roll of a  constituency shall  be given under this section after the last  date  for making  nominations  for  election  in  that   constituency. Section 33(1) of the Representation of the People Act,  1951 requires that each candidate shall deliver to the  Returning Officer  a  nomination  paper "between  11  o’clock  in  the forenoon and 3 o’clock in the afternoon." By  a notification issued under s. 30 of the  Representation of  the People Act, 1951 the Electoral Registration  Officer appointed  April  17, 1974 as the last date  for  presenting nomination  papers from the local authorities  constituency. In  the  election  that ensued the  appellant  was  declared elected with 64 votes polled by him as against 54 polled  by respondent No. 1. In  his  election petition the respondent alleged  that  the appellant,   in  collusion  with  the   electoral   officer, surreptitiously introduced names of 16 persons  representing a  taluk board after 3 p.m. on April 17, 1974 and that  this act of his constituted a corrupt practice within the meaning of s. 123 of the 1951 Act and that the election was void.- The High Court set aside the election on the ground that any inclusion  of  additional names in the electoral roll  of  a constituency  after  3  p.m. on the  last  date  for  making nominations  fixed  under s. 30(a) was  illegal,  and  after

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deducting the 16 votes cast by those persons from the  total votes polled by the appellant, declared the respondent  duly elected. Allowing  the appeal in part and remitting the case  to  the High Court. HELD  :  (1)  There  was  no  telling  material  other  than speculation  or  weak  suggestion  that  there  was  corrupt participation  on  the part of the officers.   The  material link to make out invalidation of the election on account  of corrupt practice under s. 123(7) was missing because it  had not  been made out in the evidence that there was  collusion between the second respondent and the appellant. [201A] 2.   (a)  The expression ’last date for making  nominations’ must  mean  the  last hour of the  last  date  during  which presentation  of nomination papers is permitted under s.  33 of the 1951 Act.  In short s. 23(3) of the 1950 Act and s.   33(1), (4) and (5) of the 1951 Act interact,  fertilise and operate as a duplex of    clauses.    So   viewed    the inclusion of the names in the electoral roll after 3 p.m. on April 17, 1974 is illegitimate and illegal. [204F] The  sixteen  names  brought  into  the  electoral  register subsequent to 3 p.m. of  April  17,  1974 must  be  excluded from  the  reckoning to determine  the  returned  candidate. [205E] 194 Baidyanath [1970] 1 S.C.R. 839 and Ramji Prasad Singh [1977] 1 S.C.R. 741 referred to. (b)The  prohibition contained in s. 23(3) of the 1950  Act is based on public policy and serves a public purpose.   Any violation  of such a mandatory provision conceived  to  pre- empt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity  and there can be no doubt that if,  in  flagrant violation  of  s.  23(3), names have been  included  in  the electoral  roll, (he bonus of such illegitimate votes  shall not  accrue, since the vice of viodance must attach to  such names. [202F] (c)In  our  electoral scheme as unfolded in the  1951  Act every elector ordinarily can be a candidate.  Therefore, his name  must  be included in the list on or  before  the  date fixed for nomination.  Otherwise he loses his valuable right to  run for the elective office.  It is thus vital that  the electoral registration officer should bring in the names  of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. [202G-H] (d)Section 33(1) specifies that the nomination paper shall be  presented  "between  the  hours of  11  o’clock  in  the forenoon  and 3 o’clock in the afternoon".  That means  that the  duration  of  the day for  presentation  of  nomination papers  terminates  at 3 o’clock in the  afternoon.   If  an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m. on the last day  for filing  nominations.   So the temporal terminus ad  quem  is also the day for finalisation of the electoral register  and by  the  same token, that day terminates at just  that  hour when the returning officer shuts the door. [204C] (e)The inference that could be drawn from s. 33(4) is that there  must be a completed electoral roll when the time  for filing  the nomination paper expires.  Therefore, the  final electoral roll must be with, the returning officer when  the last  minute for delivering the nomination paper ticks  off. Subsequent  additions to the electoral register will  inject confusion   and  uncertainty  about  the   constituents   or electors,  introduce  a  disability  for  such  subsequently included electors to be candidates for the election. [203D]

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(f)The  cumulative  effect  of  the  various  strands   of reasoning  and the rigour of the language of s.23(3) of  the 1950 Act leaves no doubt that inclusion of the names in  the electoral  roll  of a constituency after the last  date  for making  nominations  for an election in  that  constituency, must be visited with fatality. [203E]               [The case had been sent to the High Court  for               scrutinising  the 16 ballots for  the  limited               purpose  of discovering for whom, bow many  of               the invalid sixteen had been cast.]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  11  14  of 1976. From the Judgment and Order dated 22nd September 1976 of the Kamataka High Court in Election Petition No. 1 of 1974. L.   N.  Sinha,  K.  R.  Karanah  &  B.  P.  Singh  for  the Appellant. K.   N. Bhat and (Miss) S. Pramila for the Respondent No. 1 Y.   S. Chitley and Narayan Nettar for Respondent No. 2 The Judgment of the Court was delivered by KRISHNA IYER, J.-Four heavy volumes of case records confron- ted us in this appeal, as counsel opened the arguments,  but some, Socratic processing seemed to condense the controversy and forensic prolixity so much so we first thought the  case had shrunk to such small dimensions as to be disposed of  in a  short  judgment.  But what we initially  felt,  when  the brief narration of facts was given, proved a 195 snare.   For, when we read out in court our opinion  on  the only  crucial  aspect  of  the case,  counsel  for  the  1st respondent  hopefully  insisted that  the  factual  grounds, requiring   our   ploughing  through  ponderous   tomes   of testimonial  collection, pleadings and what not,  should  be investigated  as he expected to sustain the invalidation  of the  election  by  the High Court on the  score  of  corrupt practice and the consequential disqualification of the rival candidate i.e., the appellant before us.  He was entitled to press  that part of his case and so we agreed to  hear  both sides extensively thereon. However,  hours  of argument after, we were back  to  square one.   At this stage, some relevant facts and  circumstances need  narration.  The Karnataka Legislative Council has,  in its  composition,  some  members  elected  from  the   local authorities  constituencies.  One such member is elected  by the local bodies of Bidar district and the specific election that falls for decision was held on May 12, 1974.  According to  the  calendar for the poll contemplated in s.30  of  the Representation  of the People Act, 1951 (hereinafter  called the 1951 Act), the last date for presenting the  nominations was  appointed  as April 17, 1974.  Section  33(1)  requires that each candidate shall deliver to the returning officer a nomination  paper  as  set out in the  section  ’between  II o’clock  in the forenoon and 3 o’clock in the  after  noon’. The appellant and the first respondent did file their  nomi- nations  in  conformity with the law; their  scrutiny  over, they  entered  the fray and, after the poll  was  over,  the appellant  was declared elected, having secured 64 votes  as against  the 1st respondent’s 54 votes.  The frustrated  1st respondent  found 16 illegitimate votes having been cast  in favour  of the successful candidate and  further  discovered that  these  16 electors were ineligible to  figure  on  the electoral  roll  but  had  been  surreptitiously  introduced

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therein by collusion, fraud and other improper  machinations in  which the returned candidate and the  returning  officer were  collaborative actors.  The purity of the election  was polluted.   The result of the poll was materially  affected. The electoral process was vitiated by ’corrupt practice’  in which  the appellant and the 2nd respondent  were  particeps criminis.   He  ventured on an election  petition  with  the prayer  to  set aside the poll verdict inter alia  under  s. 123(7)  of the 1951 Act and also sought a declaration  ’that he  was duly elected on the score that the exclusion of  the invalid   votes,  very  probably  cast  in  favour  of   the appellant, led inevitably to his arithmetical success as the one who had secured the larger number of valid votes.   Such was his case. The  petitioner  had  made  somewhat  vague,  sweeping   and speculative  allegations about government, higher and  lower echelons  of officialdom and the rival candidate but, if  an apology   for  specificity  is  partially  present  in   the petition, it is about the charge of corrupt practice  roping in  the returning officer-cum-electoral registering  officer (2nd  respondent) and the successful candidate  (appellant). No  issue was originally framed on the critical question  of corrupt  practice but the learned judge  permitted  evidence thereon  to be adduced a procedure difficult to  appreciate. After  the  trial  was virtually closed  and  the  arguments finished,  the  Court discovered the need for  framing  this decisive issue.  On objection as to the absence of  material facts and 196 or  material particulars, the learned Judge framed an  issue also  on  the  actual vagueness and  legal  flawsomeness  of pleadings  on  corrupt  practice.   Naturally,  this  latter question  demanded prior decision but, curiously, the  Court delivered  all its findings, on the day of judgment, a  faux pas  which  we must point out.  Processual  proprieties  are designed to ensure fair play in adjudications and while such prescriptions  are  not rigid punctilios,  their  observance serves  to  help  the judge do,  effective  justice  between parties  and  the disputants have faith in  the  intelligent impartiality  and  full  opportunity so  necessary  for  the success  of the rule of law.  In election proceedings  where the whole community is silently present and the  controversy is  sensitive  and feelings suspicious,  the  principles  of procedural  rectitude  apply a fortiori.  The judge  is  the guardian  of  processual  justice  and  must  remember  that judgment  on  judgment  belongs, in the  long  run,  to  the people.   We  state this stern proposition here  not  merely because a forensic stitch in time saves cassational nine but because  courts are on continuous trial in a democracy.   In this  case  we  are  not satisfied  that  either  party  has suffered  in substance and procedural breaches, unless  they spell  unmerited  prejudice,  may be brushed  aside  at  the appellate level. Having said this, we hasten to add that had not the  learned judge  uncovered the suspect happenings sinisterly  hovering around  the last day for finalising the electoral roll,  the dubious doings of the political government in a  seat-hungry setting   might   not  have  been  ventilated   for   public edification.   The electoral events brought out in  evidence are  ’power’ portents ’to be prevented preemptively  by  law and   this   prompts  us  to  deal  with   the   testimonial circumstances  surrounding  the inviolable  roll  of  voters having  been  adulterated  after  the  final  hour,  zealous officers  frantically exerting themselves in what  seems  at first  sight  to be a series of  belated  circus  operations

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geared to inclusion of additional names in the rolls  before 17th  mid-night  drew the curtain.  Caesar’s  wife  must  be above suspicion and wielders of public power must fill  this bill.   A  moral  matrix  and  administrative  culture  must nurture  the  power process if democracy is  not  to  commit suicide. We will make good the relevance of these critical statements with  reference to the incontrovertible facts of this  case. However,  we do not delve into the minutiae of  evidence  or span  the  entire  factual  range,  that  being  otiose.   A catalogue  of circumstances, fair to both sides,  will  tell its own moral tale and so we set it out. The  last date for completing the electoral roll  was  April 17,  1974.  The rival candidates (the appellant and the  1st respondent)  belonged to opposing political parties but  the appellant"s  party  was in power.  Both the  candidates  had semi-V.I.P. status in their respective parties.  One  member more in the Legislative Council would, pro tanto, strengthen the Ministry.  This political backdrop be lights some of the things  which  occurred  on  the,  dates  proximate  to  the completion  of  the  electoral  roll.   The   administrative locomotion  and the human motivation behind what  the  trial judge had described as ’manouvres’ is simple to  understand, although, as will be shown below, we do not agree 197 wholly  with  all  the  deductions of  the  High  Court.   A particular party is in office.  The strength of its  members in  both  Houses  is therefore  of  political  significance, especially  if fluid Politics turns out to be the  field  of all  possibilities.  Karnataka has a bicameral  legislature, and   it  is  reasonable  to  suppose  that  the   political government has an understandable concern in the election  of a  member of the Legislative Council, who will be  of  their party.  Bidar district in Karnataka has a local  authorities constituency seat, to be elected by the members of the local bodies  there.  It follows that the potential  electors  who are likely to favour their candidate must be brought on  the rolls to ensure his victory.  Inevitably there was therefore keen  interest  in incorporating in the electoral  roll  the members  of the Taluk Development Board, Bidar  (for  short, the Bidar Board).  The election to the Bidar Board had taken place years ago, 11 of them having been elected way back  in 1968  and 8 later.  The election of the 11 members had  been duly notified in 1968 but the Board itself stood  suspended, an Administrator having been appointed to run its affairs. 8 members who had been later elected to the Board landed up in the  High Court on account of writ petitions filed by  their rivals.   Stay had been granted by the High Court  and  this led to an absence of 2/3 of the total members being able  to function,  statutorily necessitating the appointment  of  an Administrator.   Long later the High Court disposed  of  the writ  petitions  whereby  3 returns were  set  aside  and  5 upheld.   The  arithmetical upshot of these  happenings  was that there were 16 members duly elected to the Bidar  Board, and the High Court having disposed of the writ petitions  in June 1972, the local body could have been liberated from the bureaucratic  management of an Administrator and allowed  to function  through  elected representatives.   All  that  was needed  to vivify this body of local self-government  was  a notification  under the Mysore Village Panchayats Act  X  of 1959,  terminating  the Administrator’s  term,  and  perhaps another extending the terms of some members. Elections to local bodies and vesting of powers in units  of self  government  are part of the  Directive  Principles  of State Policy (Art. 40 of the Constitution) and, in a  sense,

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homage  to the Father of the Nation, standing as he did  for participative  democracy through decentralisation of  power. Unfortunately,  after holding elections to the  Bidar  Board and  making  people  believe that they  have  elected  their administrative  representatives  at the lowest  levels,  the State Government did not bring to life the local board  even long after the High Court had disposed of the challenges  to the  elections  in  June  1972.   A  government,  under  our Constitution, must scrupulously and energetically  implement the principles fundamental to the governance of the  country as mandated by Art. 37 and, if even after holding  elections Development  Boards  are  allowed  to  remain  moribund  for failure  to  notify the curtailment of  the  Administrator’s term,  this  neglect almost amounts to  dereliction  of  the constitutional   duty.    We  are  unhappy  to   make   this observation but power to the people, which is the soul of  a republic,  stands subverted if decentralisation and  devolu- tion  desiderated in Art. 40 of the Constitution is  ignored by  executive  inaction even after holding election  to  the floor-level administrative 198 bodies.   The devolutionary distance to ideological  Rajghat from  power-jealous  State  capitals  is  unwillingly   long indeed, especially in view of the familiar spectacle of long years  of  failure  to  hold  elections,  to  local  bodies, supersession  aplenty  of local self-government  units,  and gross inaction even in issuing simple notifications  without which elected bodies remain still-born.  ’We, the people’ is not constitutional mantra but are the power-holders of India from the panchayat upward. Back  to  the  main trend of the argument.   It  became  now compulsive   for   the  party-in-power  to   de-notify   the Administrator and revive the elected body if they wanted the members  of  the Bidar Board to vote perhaps  in  favour  of their  candidate.  The 11 members elected long back in  1968 could  not vote, on account of the expiry of the 4year  term unless  in view of s. 108 of Act 10 of 1959, the  government issued another notification extending the term of office  of these members.  So the elective interest of the candidate of the  party-in-power could be promoted only if three or  four quick  administrative steps were taken.  Firstly, there  was to  be a notification ending the Administrator’s  term  over the  Bidar Board.  Secondly, there was to be a  notification extending  the  term  of the 11  members  elected  in  1968. Thirdly,  there was to be a notification of the election  of the 5 members whose return had been upheld in the High Court in  June  1972.   Fourthly, the electoral  roll  had  to  be amended by inclusion of these 16 names.  If these steps were duly taken, 16 additional members would become electors  and the  party-in-power  (if these electors  be-longed  to  that party  or  were under its influence) could  probably  expect their  votes.   The poll results show that the  contest  was keen and these 16 votes would have been of great moment.  In this  high-risk predicament, long bureaucratic indolence  in issuing  notifications  and political  indifference  to  the functioning  of local bodies produced a situation where  the elected roll did not contain the names of the 16 members  of the Bidar Board. Only  a  few  days prior to  April  17,  1974-the  D-day-the affected   candidate,   i.e.,  the  appellant,   moved   the government for initiation of the steps mentioned above’  but nothing  happened.  On April 16, the day before the  crucial date for closing the electoral roll, i.e., the last date for making   nominations,  the  appellant  moved  the   Minister concerned   who   was  in  Bidar  to   get   the   necessary

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administrative  steps  taken  quickly.  He  also  moved  the returning  officer,  RW 2. We find the  Minister  making  an endorsement  on  the  petition.   We  notice  the  returning officer  seeking telegraphic instructions  from  government. We  see government sending an Under Secretary, PW 3, by  air from Bangalore to Hyderabad and onward by car to Bidar  with some  orders.   This PW 3 probably  apprised  the  returning officer RW 2 about orders having been passed raving the  way for inclusion of the 16 names in the electoral roll.  PW  3, the Under Secretary, for reasons not known, makes a bee-line the  same evening to Gulbarga where be meets  the  Minister. The  returning officer does not have with him  any  gazette’ notifications.  as  we see that under s. 2(20) of Act  X  of 1959, a notification must possess the inalienable  attribute of  publication  in the official gazette.   Admittedly,  the returning officer did not come by any 199 of  the  necessary notifications before the evening  of  the 17th.  Admittedly, he did not have any gazette notifications before April 25th.  Under s. 27 of the Representation of the People Act, 1950, the electoral registration officer who, in this case, is also the returning officer, had to have before him gazette notifications which clearly he did not have till the   25th,   i.e.,  8  days  after   the   relevant   date. Nevertheless  he, obligingly enough including the  16  names which was in breach of the legal provisions. Frenzied  official  movements  on and  after  April  16  are visible in this case.  The scenario excites suspicion.   The candidate meets the Minister of his party on the 16th.   The returning  officer  takes  the unusual steps  of  sending  a telegram  for instructions from government for inclusion  of names in the electoral roll.  The Secretariat despatches  an Under  Secretary  to reach Bidar by air dash  and  long  car drive.   A  meeting  between the  Under  Secretary  and  the electoral  registration officer follows and then  the  Under Secretary  winds  up  the  day  by  meeting  the   Minister, presumably  to  report  things done,  and  the  registration officer supplements the electoral roll by including 16  more names, without getting the gazette notification.  We have no doubt, as we will presently explain, that this inclusion  is invalid,  but  what we are presently concerned with  is  the protracted  inaction  for years of the State  government  in issuing simple notifications to resuscitate the Bidar  Board and the sudden celerity by which a quick chase and spurt  of action  resulting  in a Minister’s endorsement,  the  regis- tration officer’s telegram, Secretariat hyper busyness,  the unusual  step of an Under Secretary himself journeying  with government  orders  to  be  delivered  to  the  registration officer,  the  electoral registration officer  hastening  to amend  the, electoral roll slurring over the legal  require- ment  of  a gazette notification and making it  appear  that everything was done on the 17th before mid-night, and a  few other  circumstances,  make up a complex of  dubious  doings designed to help a certain candidate belonging to the party- in-power. The  officers  had  no, personal interest as  such  and,  in fairness,  we must state the High Court has exonerated  them of  any oblique conduct to further their own interests.   We wish to state clearly that having taken a close look at  the developments  we  are not inclined to implicate any  of  the officers-and  there are quite a few involved with mala  fide conduct  or  collusion with the returned  candidate.   Legal peccadilloes  are  not  fraud  or  collusion  without  more. However, the performance of the political government and the pressurization  implicit  in the hectic activities  we  have

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adverted to, read in the light of the likely political gains accruing  to the party-in-power, generate  apprehensions  in our minds about the peril to the electoral process if  poli- tical  bosses  in office rubberise the  public  services  to carry  out behests which are contrary to the law  but  non- compliance with which might be visited with  crypto-punitive consequences.   We would have taken a harsher  view  against the public servants bad we something more than what may even be   a  rather  strong  suspicion  of   obliging   deviance. Sometimes they are transfixed between Scylla and  Charybdis. Even 200 strong suspicion is no substitute, for proof.  It has  often been said that suspicion is the Upas tree under whose  shade reason fails and justice dies.  There is, a core of truth in this caveat. Shri  Bhat, counsel for the 1st respondent, argued his  case strenuously but could not make out that vital nexus  between the  candidate  who  stood to gain and  the  officers  whose action  he  impugned.   More. over,  the  movements  of  the Minister  at  about that time raises doubts  and-  the  huge expenditure  involving  in rushing an Under  Secretary  from Bangalore  by  air  and road to Bidar were a  drain  on  the public exchequer which could have been avoided if action had been taken in time by a few postal communications.  But  the trial  judge erred in substituting suspicion  for  certitude and  drawing untenable inferences where paucity of  evidence snapped  the nexus needed for collusion.  A court  must,  as usual, ask for proof beyond reasonable doubt from the  party setting  up corrupt practice even when there is a veneer  of power  politics  stooping to conquer  and  officers  thereby becoming vulnerable to ’higher displeasure. The  faith of the people in the good faith of government  is basic to a republic.  The administrative syndrome that harms the  citizens’ hopes in the State often manifests itself  in callously  slow action or gravely suspicious instant  action and  the  features  of  this  case  demonstrate  both.    Pi Admittedly,  the  Bidar Board elections  were  substantially over in 1968 and were more or less complete in 1972 and  yet the  necessary notifications in the gazette, which  are  the statutory  precondition  for the local body  to  be  legally viable,  were,  for  years,  not  published  and,  when  the critical hour for the electroal list to be finalised fell at 3 p.m. on April 17, 1974, the government and its  officer,,, went   through   exciting  exercises  unmindful   of   legal prescriptions  and managed the illegitimate inclusion of  16 names  in  the  electoral  roll.  We  hope  that  the  civil services in charge of electoral processes which are of grave concern for the survival of our democracy will remember that their  masters  in  statutory matters are the  law  and  law alone, not political superiors if they direct deviance  from the  dictates of the law.  It is never to be forgotten  that our  country is committed to the rule of law  and  therefore functionaries  working under statutes, even though  they  be government servants, must be defiantly dedicated to the  law and  the  Constitution and, subject to  them,  to  policies, projects and directions of the political government. "Be you ever so high, the law is above you"-this applies  to our Constitutional order. Shri Bhat, counsel for the 1st respondent ultimately  argued these  aspects  of the case.  But, when we  were  more  than half-way through, it became clear that the material link  to make out invalidation of the election on account of ’corrupt practice under S. 123(7) of the 1951 Act was missing because it  had  not been made out in the evidence  that  there  was

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collusion between the 2nd respondent and the appellant.   At that  stage, taking a realistic stance, counsel  acceded  to our  view that while there was sufficient room for  the  1st respondent to be 201 disturbed  about the electoral verdict on the score  of  the inclusion  of 16 names there was not any  telling  material, other  than speculation or weak suggestion, that  there  was corrupt  participation  on the part ,,of the  officers.   If this  position were right-and we hold it is-what remains  to be done is to ascertain the legal effect of the inclusion in the electoral roll of the new names after the expiry of  the appointed ,hour and date. According to the calendar for the poll contemplated in s. 30 of  the 1951, Act the last date for making  the  nominations was appointed as April 17, 1974.  Section 33(1) of the  1951 Act  requires  that each , candidate shall  deliver  to  the Returning  officer  a  nomination paper as set  out  in  the section : "between 11 o’clock in the forenoon and 3  o’clock in the afternoon".  The appellant and the 1st respondent did ,file their nominations in conformity with ss. 30 and 33  of the  1951  Act but the electoral  registration  officer  2nd respondent in the appeal), included the names of 16  persons representing the Bidar Board after 3 p.m. of April 17, 1974. There  is a dispute between the parties as to  whether  such inclusion was directed on the 17th (after 3 p.m.) or on  the 18th, the former being the case of the appellant as well  as the  2nd  respondent, the latter being the case of  the  1st respondent  and  upheld by the High Court.  The  Court  held that,  in  law,  any inclusion of additional  names  in  the electoral  roll of a constituency after 3 p.m. on  the  last date for making nomination fixed under s. 30(a) of the  1951 Act was illegal.  Consequently. it arrived at the  follow-up decision  that  the 16 votes which had been  cast  by  those objectionably added, had to be ignored.  On a further  study of the evidence, the Court concluded that these 16 votes had been  cast  in favour of the elected  candidate  and  should therefore be deducted from his total tally.  The  appellant, who had secured 64 votes as against respondent no.. 1’s  54, had  only  a  lead of 10 votes.  He slumped  below  the  1st respondent when 16 votes were deducted from his total.   The necessary  result, in the view of the High Court,  was  that not  only had the appellant’s election to be set  aside  but the  1st  respondent deserved to be declared  duly  elected. This was done. An  appreciation of the evidence bearing on the question  as to whether the 2nd respondent i.e., the Registration officer bad  acted  under  the  appellant’s  oblique  influence   in including the additional names after the last date for  such inclusion,  has  led us to overturn the  affirmative  answer from  the learned trial judge.  The holding that a  ’corrupt practice’, within the ambit of s. 123, had been committed by the appellant who was therefore disqualified under s. 8A led to  two  consequences.   The  appellant,  who  had  won  the election  at the polls, lost the election in the court  and, worse  still,  suffered a  six-year  disqualification.   The doubly  aggrieved  appellant  has  challenged  the   adverse verdict   and   the  wounded   2nd   respondent   (electoral registration  officer) has separately appeared to  wipe  out the  damaging effect of the obliging inclusion of  names  of electors  after the time set by the law was over.   We  have already  set aside the finding under s. 123(7) of  the  1951 Act,   of   corrupt   practice  and  with   it   falls   the disqualification. 2-768 SCI/77

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202 The short point, whose impact may be lethal to the result of the election, is as to whether s. 23 of the 1950 Act  should be  read down in conformity with ss. 30 and 33 of  the  1951 Act.   The  proposition,,  which has appealed  to  the  High Court, has the approval of the ruling in Baidyanath(1).  The Court, there, observed:               "in our opinion cl. 23(a) takes away the power               of  the electoral registration officer or  the               chief electoral officer to correct the entries               in the electoral rolls or to include new names               in the electoral rolls of a constituency after               the  last date before the completion  of  that               election.               It  interdicts  the  concerned  officers  from               interfering with the electoral rolls under the               prescribed  circumstances.  It puts a stop  to               the power conferred on them.  Therefore it  is               not a question of irregular exercise of  power               but a lack of power.               (p.842               We  have earlier come to the  conclusion  that               the  electoral  registration  officer  had  no               power  to include new names in  the  electoral               roll  on April 27, 1968.  Therefore  votes  of               the electors whose names were included in  the               roll  on  that date must be held to,  be  void               votes." (p. 843) There  is  a  blanket  ban in s.  23(3)  on  any  amendment, transposition  or deletion of any entry or, the issuance  of any  direction for the inclusion of a name in the  electoral roll  of  a  constituency ’after the last  date  for  making nominations for an election in that constituency......  This prohibition  is based on public policy and serves  a  public purpose  as we will presently bring out.  Any  violation  of such a mandatory provision conceived to preempt scrambles to thrust  into  the rolls, after the appointed  time,  fancied voters  by anxious candidates or parties  spells  invalidity and  we  have,  therefore,  no doubt  that  if  in  flagrant violation  of  s.  23(3), names have been  included  in  the electoral  roll, the bonus of such illegitimate votes  shall not accrue, since the vice of avoidance must attach to  such names.   Such  void votes cannot help a  candidate  win  the contest. Why do we say that there is an underlying public policy  and a  paramount  public  purpose served by s. 23(3)  ?  In  our electoral scheme as unfolded in the 1951 Act, every  elector ordinarily can be a candidate.  Therefore, his name must  be included  in  the  list  on or before  the  date  fixed  for nomination.   Otherwise he losses his valuable right to  run for  the  elective  office.   It  is  thus  vital  that  the electoral registration officer should bring in the names  of all the electors into the electoral roll before the date and hour  fixed for presenting the nomination paper.   There  is another equally valid reason for stressing the inclusion  of the names of all electors before (1)  [1970] 1.S.C.R. 839. 203 the  hour  for  delivering  to  the  returning  officer  the nomination paper. Section 33(4) of the 1951 Act reads               "(4)  On  the  presentation  of  a  nomination               paper,  the  returning officer  shall  satisfy               himself  that  the names  and  electoral  roll               numbers  of the Candidate and his proposer  as               entered  in the nomination paper are the  same

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             as those entered in the electoral rolls :               x                     x                      x               x" In  the  light of this provision the returning  officer,  on receipt of the nomination paper, satisfies himself that  the candidate’s  name  and electoral roll number  are  correctly entered.    Necessarily,  this  is  possible  only  if   the electoral  roll  contains  the names of  all  the  electors. Likewise,  s. 33(5), which deals with a candidate who is  an elector  from  a  different constituency,  requires  of  the candidate the production of a certified copy of the relevant entry  showing  his name in such a roll.  The  inference  is inevitable  that  there must be a completed  electoral  roll when the time for filing the nomination paper expires.   The argument  is  therefore  incontrovertible  that  the   final electoral  roll must be with the returning officer when  the last minutes for delivering the nomination paper ticks  off. Subsequent  additions to the electoral register will  inject confusion   and  uncertainty  about  the   constituents   or electors,  introduce  a  disability  for  such  subsequently included electors to be candidates for the election and  run counter to, the basic idea running through the scheme of the Act that in the preponderant pattern of elections, viz., for the  legislative  assemblies and  parliament,  the  electors shall  have the concomitant right of being candidates.   The cumulative effect of these various strands of reasoning  and the  rigour  of  the language of s. 23(3) of  the  1950  Act leaves no doubt in our minds that inclusion of the names  in the electoral roll of a constituency after the last date for making  nominations  for an election in  that  constituency, must  be visited with fatality.  Such belated  arrivals  are excluded  by the talons of the law, and must be  ignored  in the  poll.   It is appropriate to quote  from  Baidyanath(1) here :               "The  object of the aforesaid provision is  to               see  that to the extent possible, all  persons               qualified  to be registered as voters  in  any               particular   constituency   should   be   duly               registered  and to remove from the  rolls  all               those who are not qualified to be  registered.               Sub-s.  (3)  of  s. 23  is  not  an  important               exception  to  the rules  noted  earlier.   It               gives a mandate to the electoral  registration               officers  not to amend, transpose,  or  delete               any   entry  in  the  electoral  roll   of   a               constituency  after the last date  for  making               nominations for election in that  constituency               and  before the completion of  that  election.               If  there was no such provision,  there  would               have been room for considerable manipulations,               particularly  when  there  are  only   limited               number of electors in a constituency.  But for               that (1)  [1970] 1 S.C.R. 839,842. 204               provision, it would have been possible for the               concerned  authorities  to so  manipulate  the               electoral  rolls as to advanced the  prospects               of a particular candidate." A more trickly issue now arises, Assuming April 17, 1974  to be the last date for filing nominations (and it is so in the case),  can  the electoral roll be amended on that  date  to include  additional  names,  but after  the-  hour  set  for presenting the nomination paper ? Section 33(1) specifies inflexibly that the nomination paper

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shall  be presented between the hours of 11 o’clock  in  the forenoon  and 3 o’clock in the afternoon’.  That means  that the  duration  of  the day for  presentation  of  nomination papers  terminates  at 3 o’clock in the  afternoon.   If  an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m., on the last day for filing nominations.  So the temporal terminus adquem is also the day for finalisation ofthe electoral register and  by the same token, that day terminates atjust that hour  when the returning officer shuts the door.  The day is  truncated to  terminate  with the time when reception  of  nominations closed. Section 23 of the 1950 Act does state that the inclusion  of the names in the electoral roll can be carried out till  the last  date  for making nominations for an  election  in  the concerned constituency.  What, then, is the last date?  When does  the  last  date cease to be?  If the  purpose  of  the provision  were to illumine its sense, if the literality  of the text is to be invigorated by a sense of rationality,  if conscionable  commonsense were an- attribute  of  ’statutory construction,  there  can  hardly  be  any  doubt  that  the expression ’last date for making nominations’ must mean  the last  hour  of the last date during  which  presentation  of nomination papers is permitted under S. 33 of the 1951  Act. In  short, S. 23 (3) of the 1950 Act and s. 33(1),  (4)  and (5)  of  the 1951 Act interact, fertilise and operate  as  a duplex of clauses.  So viewed, the inclusion of the names in the  electoral  roll  after 3 p.m., on April  17,  1974,  is illegitimate and illegal. At  this stage, it may be appropriate to make  reference  to Ramji  Prasad  Singh(1)  to which one of  us  was  a  party. Indeed, attention of counsel was invited to this decision by the  Court.  That case turned on the inclusion of 40  voters in  contravention  of  S.  23(3)  of.  the  1950  Act.    By incorporating in the electoral roll new names after the last date  for  filing  nomination, this  Court  held  that  such inclusion  of  new names would be clearly in breach  of  the mandate  contained  in  S.  23(3)  of  the  1950  Act   and, therefore,   beyond  the  jurisdiction  of   the   electoral registration  officer.  This view is precisely what we  have taken in the present case. In  that  case this Court, on fact, took the view  that  the communication from the Chief Executive Officer of the  local authority  to substitute certain new names in the  electoral roll could not have been acted upon (1)  [1977] 1 S.C.R. 741. 205 before  April  6, 1972, the last date  of  nomination  being April  5, 1972.This is clear from the following  observation in the judgment :               "In  fact  the letter was ’diarised’  by  Shri               Bose’s office on the 6th. . . The fact of  the               matter  seems to be that the notifications  of               the  4th April came too late for  being  acted               upon before the dead-line, which was the  5th.               The  red  tape  moved  slowly,  the  due  date               expired  and  then  every  one  awoke  to  the               necessity of curing the infirmity by  hurrying               with the implementation of the  notifications.               But  it was too late and the law  had  already               put  in  seal  on the  electoral  roLL  as  it               existed  on  the 5th April.  It could  not  be               touched  thereafter, until the  completion  of               the election." This  Court, in that case, observed that it was  ’impossible

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to accept the half-hearted claim of Shri Bose that he passed orders  for inclusion of the new names on the  5th  itself’. This Court was not called upon to go into the question as to what would be the legal position if the electoral rolls were actually  amended at 11.30 p.m. on 5th April after the  last hour  for  the nomination, viz., 3 p.m. on that  day.   This finer  facet  which falls for consideration in  the  present appeal viz., whether the ’last day’ contemplated in s. 23(3) of the 1950 Act ends at 3 p.m. on that day for the  purpose, or  continues  until mid-night did not  actually  arise  for judicial investigation in Ramji Prasad’s Case(supra). The upshot of the above interpretation is that the 16  names which   have  been  brought  into  the  electoral   register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate. The  learned  Judge  has declared the  2nd  respondent  duly elected on the strength, mainly, of inference drawn from the oral  evidence  of the rival candidates.   The  ballots  are alive,  and available and speak best.  Why, then,  hazard  a verdict  on the flimsy foundation of oral evidence  rendered by  interested  parties ? The  vanquished  candidate’s  apse digits  or  the  victor’s  vague  expectations  of   voters’ loyalty-the grounds relied on-are shifting sands to build  a firm finding upon, knowing how notorious is the cute art  of double-crossing and defection in electoral politics and  how undependable the testimonial lips of partisans can be unless authenticated by surer corroboration.  Chancy credulity must be  tempered  by  critical appraisal,  especially  when  the return  by  the  electoral process is to  be  overturned  by unsafe  forensic guesses., And where the ground for  recount has  been fairly laid by testimony, and the  ballot  papers, which  bear  clinching proof on their bosoms, are  at  hand, they are the best evidence to be looked into.  No party  can run  away from their indelible truth and we wonder  why  the learned judge avoided the obvious and resorted to the risky. May be thought reopening and recount of ballots may undo the secrecy of the poll.  We are sure that the correct course in the circumstances of this case is to send for and scrutinize the  16 ballots for the limited purpose of  discovering  for whom,  how  many  of the invalid  sixteen  have  been  cast. Secrecy  of  ballot  shall be maintained  when  scrutiny  is conducted and only that part which reveals the vote (not the persons who voted) shall be open for inspection. 206 What,  then,  is  the result of the  reasonings  which  have prevailed  with  us ? It is simply this, viz., that  the  16 votes  of the members of the Bidar Board should be  excluded and  the consequential tilting of the result  re-discovered. We  are, therefore, constrained to direct the High Court  to send  for  the  ballot papers and pick out  the  16  ballots relating  to the Bidar Board members, examine  them  without exposing  the identity of the persons who have voted and  to whom  they have voted and record a rectally excluding  these 16  tainted  votes from the respective candidates.   It  the resultant-balance-sheet shows that the appellant has  polled less valid votes than the 1st respondent, his election  will be  set aside and the 1st respondent declared duly  elected. If, on the other hand, despite these deletions the appellant scores   over  the  1st  respondent,  his  return  will   be maintained.   Any way, counsel on both sides agree that  the best course will be to call for a report from the High Court in the light of the operations above indicated.  The learned Single Judge who heard the case will examine the 16  ballots as directed above consistently with natural justice,  record the  number of votes out of the 16 each has got and  forward

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to this Court a comprehensive and correct statement with the necessary  particulars.  This report shall be made within  3 weeks  from the receipt of the records from this  Court  and the  appeal  shall be posted for  disposal  immediately  the report  reaches.   With these-directions we dispose  of  the appeal pro tempore.  By  way of post-script, we may state that counsel  for  the 1st   respondent  submitted,  after  we   crystallized   the directions indicated above, that he was not too sure whether the  16 ballot papers could be identified.  The  appellant’s counsel, however, asserted that there were numbers indelibly imprinted on the reverse of the ballot papers and, as  such, the  identification of 16 impugned votes may not  present  a problem.  In the event of impossibility of fixing  identity, a  report to. that effect will be forthcoming from the  High Court and we may, notwithstanding the observations about the oral  evidence  made above, rehear the case with a  view  to record  our finding as to which way the voting went, out  of the  offending  16,  so that we may  determine  whether  the result of the election has been materially affected.  If  it is  not  possible,  further  suitable  directions  will   be considered. We may also mention that at one stage of the arguments  Shri L.N. Sinha drew our attention to a designedly wide amendment to the Act of 1951 made in the wake of the election case  of Smt.  Indira Gandhi.  Its validity, for our provisions,  has been  upheld by this Court in Smt.  Indira Nehru  Gandhi  v. Raj  Narain(1).  It was pressed before us that with the  re- definition of ’candidate’ in S. 79(b) and the addition of  a proviso  to  S.  127(7),  by Act XL  of  1975,  the  present election petition had met with its statutory Waterloo.   But Shri Bhat urged that his averments of officials’ abetment of promotion  of  the appellant’s candidacy related also  to  a point of time after the nomination paper was filed.  He also submitted   that  the  imputations  against  the   electoral registration officer were so far beyond his duties that  the blanket  proviso could not protect the acts.  Since we  have taken the view that corrupt practice, even under the amended S. 123(7), has not been established, (1) [1976] 2 S.C.R. 347. 207 the pronouncement on the exonerative efficacy of the amended Act does not arise.  But officials must realise-and so  too the highest in Administration-that the proviso to s.  123(7) does   not  authorise  ,out-of-the-way  doings   which   are irregular.   A wrong does not become right if the law  slurs over it. We  part  with this case with an uneasy mind.   There  is  a finding by the High Court that an influential candidate  had interfered  with officials to adulterate an electoral  roll. We  have  vacated the finding but must warn that  the  civil services  have  a  high  commitment  to  the  rule  of  law, regardless of covert commands and indirect importunities  of bosses inside and outside government.  Lord Chesham said  in the House of Lords in 1958 : "He is answerable to law  alone and not to any public authority.". A suppliant,  obsequious, satellite public service-or one that responds to allurements promotional or pecuniary-is a danger to a democratic  polity and  to the supremacy of the rule of law.  The  courage  and probity  of  the  hierarchical election  machinery  and  its engineers,  even when handsome temptation entices  or  huffy higher  power  browbeats,  is  the  guarantee  of  electoral purity.   To conclude, we are unhappy that  such  aspersions against  public servants affect the integrity and morale  of the  services  but  where the easy  virtue  of  an  election

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official  or  political  power-wielder  has  distorted   the assembly-line  operations, he will suffer one day.  Be  that as  it  may,  we express no final opinion  beyond  what  has already been said. P.B.R.                                                Appeal allowed in part. 208