21 May 1954
Supreme Court


Case number: Appeal (civil) 213 of 1953






DATE OF JUDGMENT: 21/05/1954


CITATION:  1954 AIR  510            1955 SCR  481  CITATOR INFO :  F          1956 SC 140  (2)  R          1959 SC  93  (15,16)  E&R        1960 SC1049  (16)  R          1970 SC 110  (4)  E          1973 SC 178  (9)

ACT:     Representation of the People  Act, 1951 (XLIII of 1961), ss. 2 (1)(k), 33(1) and (2),36(2)(d) and  (4)-Representation of the People (Conduct of Elections and Election  Petitions) Rules,   1951,  r.  2(2)--Nomination   paper-Subscribed   by illiterate  proposer  and  seconder  Containing   thumb-mark instead  of signatures-No attestation thereof  Validity  of- Attestation-Whether  a necessary formality-At what stage  it must exist- Whether can be validated at scrutiny stage.

HEADNOTE: Under section 33(1) of the Representation of the People Act, 1951,  each  nomination paper should be  "subscribed"  by  a proposer  and  a  seconder.   Where  the  proposer  and  the seconder of a nomination paper (as in the present case)  are illiterate  and so place thumb-marks instead  of  signatures and those thumb-marks are not attested, the nomination paper is invalid as attestation in the prescribed manner in such a case is necessary because of rule 2(2) of the Representation of the People (Conduct of Elections and Election  Petitions) Rules, 1951, which requires it. Signing, whenever signature is necessary, must be in  strict accordance  with the requirements of the Act and  where  the signature  cannot  be written it must be authorised  in  the manner prescribed by the Rules. 62 482 Attestation  is  not  a  more  technical  or   unsubstantial requirement  within the meaning of section 36(4) of the  Act and cannot be dispensed with. The  attestation  and  the satisfaction must  exist  at  the presentation stage and a total omission of such an essential feature  cannot  be subsequently validated at  the  scrutiny stage  any more than the omission of a candidate to sign  at all could have been.



Section 36 of the Act is mandatory and enjoins the Returning officer  to refuse any nomination when there has  been  "any failure to comply with any of the provisions of section 33."

JUDGMENT:    CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 213A and 213B of 1953.    Appeals  by Special Leave against the Judgment and  Order dated  the  24th  June,  1953,  of  the  Election  Tribunal, Ludhiana, in Election Petition No. 153 of 1952.    C.     K. Daphtary, Solicitor-General for India, (Harbans Singh  Doabia  and  Rajinder  Narain,  with  him)  for   the appellant in Civil Appeal No. 213A.   Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant in Civil Appeal  No. 213B.    Naunit  Lal  for respondents Nos. 3 and 19  in  both  the appeals.    1954.   May 21.  The Judgment of the Court was  delivered by BOSE  J.-These are two appeals against the decision  of  the Election Tribunal at Ludhiana. The  contest  was for two seats in the Pun  jab  Legislative Assembly.  The constituency is a double member constituency, one  seat  being  general  and  the  other  reserved  for  a Scheduled Caste.  The first respondent is Atma Ram.  He  was a  candidate  for the reserved seat but his  nomination  was rejected by the Returning Officer at the scrutiny stage  and so  he was unable to contest the election.   The  successful candidates  were Rattan Anmol Singh, the appellant in  Civil Appeal  No.  213-A  of 1953, for the general  seat  and  Ram Prakash, the appellant in Civil Appeal No. 213-B of 1953 for there served.  Atma Ram filed the present election petition. The Election :Tribunal decided in 483 his  favour  by a majority of two to one  and  declared  the whole  election  void.  Rattan Anmol Singh and  Ram  Prakash appeal here. The main question we have to decide is whether the Returning Officer  was right in rejecting the petitioner’s  nomination papers.   The facts which led him to do so are  as  follows. The  Rules  require  that each nomination  paper  should  be "subscribed"  by a proposer and a seconder.  The  petitioner put in four papers.  In each case, the proposer and seconder were  illiterate  and so placed a thumb-mark  instead  of  a signature.  But these thumb-marks were not "attested".   The Returning  Officer held that without "attestation" they  are invalid and so rejected them.  The main question is  whether he  was  right in so holding.  A  subsidiary  question  also arises,   namely,  whether,  assuming  attestation   to   be necessary  under  the  Rules,  an  omission  to  obtain  the required  attestation’ amounts to a technical defect  of  an unsubstantial  character  which the  Returning  Officer  was bound to disregard under section 36(4) of the Representation of the People Act, 1951 (XLIII of 1951).     Section  33(1)  of the Act requires  each  candidate  to "deliver  to the Returning Officer...... a nomination  paper completed  in  the  prescribed form and  subscribed  by  the candidate himself as assenting to the nomination and by  two persons  referred  to  in sub-section (2)  as  proposer  and seconder." Sub-section (2) says that- "any person whose name is registered etc... may subscribe as



proposer or seconder as many nomination papers as there  are vacancies to be filled........ The  controversy centers on the word "subscribed" which  has not been defined in the Act. The prescribed nomination form referred to in subsection (1) of  section 33 is to be found in Schedule II.  In this  form we have the following:-    "9. Name of the proposer 12.  Signature of the proposer 484 13.  Name of the  seconder.................................. 16. Signature of the seconder." The  Oxford English Dictionary sets out thirteen  shades  of meaning  to  the  word ’,subscribe",  most  of  them  either obsolete  or now rarely used.  The only two which  can  have any real relation to the present matter are the following:    1.     "To  write (one’s name or mark) on, originally  at the  bottom  of  a  document, especially  as  a  witness  or contesting party; to sign one’s name to."    This meaning is described as "rare."    2.     "To  sign  one’s  name to; to  signify  assent  or adhesion to by signing one’s name; to attest by signing." This  appears to be its modern meaning, and is also  one  of the meanings given to the word "sign", namely "to attest  or confirm by adding one’s signature; to affix one’s name to (a document) late."    One  also  finds  the  following  in  Stroud’s   Judicial Dictionary, 3rd edition:   "Subscribe. (1) ’Subscribe’ means to write under something in  accordance  with prescribed regulations where  any  such exist  But though this is the strict primary meaning of  the word, it may sometimes, e.g., in the attestation of a  will, be  construed  as  ’to  give assent to,  or  to  attest’  or ’written upon    "(3) ’Subscription is a method of signing; it is not  the only method’; a stamped, or other mechanical impression of a signature is good, in the case of electioneering papers..." It  is clear that the word can be used in various senses  to indicate different modes of signing and that it includes the placing of a mark.  The General Clauses Act also says that- "’sign’  with reference to a person who is unable  to  write his name, includes ’mark’     But this is subject to there being nothing repugnant  in the subject or context of the Act.  In our opinion, the crux of the matter lies there.  We have to see 485 from the Act itself whether "sign" and "subscribe" mean  the same  thing  and whether they can be taken  to  include  the placing  of a mark.  The majority decision of  the  Tribunal holds  that "sign" and "subscribe" are not used in the  same sense in the Act because a special meaning has been given to the  word  I  sign"  and  none  to  the  word   "subscribe", therefore, we must use "subscribe" in its ordinary  meaning; and  its ordinary meaning is to "sign" but not to "sign"  in the  special way prescribed by the Act but in  the  ordinary way;  therefore we must look to the General Clauses Act  for its ordinary meaning and that shows that when it is used  in its ordinary sense it includes the making of a mark.     We agree with the learned Chairman of the Tribunal  that this is fallacious reasoning.  The General Clauses Act  does not   define  the  word  "subscribe"  any  more   than   the Representation  of the People Act, and if it is improper  to exclude  the  special  meaning  given to "  sign  "  in  the Representation of the People Act because the word "sign " is defined  and  not " subscribe," it is  equally  improper  to



import  the  special definition of " sign " in  the  General Clauses  Act because that also defines only "sign"  and  not "subscribe" and also because the " subject " and " context " of  the  Representation  of the People  Act  show  that  the writing  of a signature and the making of a mark are  to  be treated differently.     The learned counsel for the respondent-analysed the  Act for  us and pointed out that the word " subscribe " is  only used  in Chapter I of Part V dealing with the Nomination  of Candidates  while in every other place the word " sign "  is used.   We  do not know why this should be  unless,  as  was suggested by the learned Solicitor-General, the  Legislature wished to underline the fact that the proposer and  seconder are  not merely signing by way of attesting the  candidate’s signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and  as a person for whom they are prepared to  vouch,  also that  the  candidate’s signature imports more  than  a  mere vouching for the accuracy of the 486 facts  entered  in  the  form.  It  imports  assent  to  his nomination.   We  think  the  learned  Solicitor-General  is probably right because section 33 speaks of "a  nomination  paper completed in the prescribed  form  and subscribed  by  the. candidate himself as assenting  to  the nomination." But however that may be, it.is evident from the form that  " signatures  are  required.   It is  also  evident  from  the definition  of sign " that the Legislature attached  special importance  to  the  fact that in  the  case  of  illiterate persons unable to write their names it is necessary to guard against misrepresentation and fraud by requiring that  their signatures should be formally authenticated in a  particular way.   A  special statutory cloak of  protection  is  thrown around  them just as the ordinary law clothes  pardanish  in women and illiterate and ignorant persons and others  likely to be imposed on, with special protective covering.    Now  it is to be observed that section 2 calls itself  an interpretation " section.  It says-    "   (1)  In  this  Act,  unless  the  context   otherwise requires.................................................... (k)  ’sign’  in relation to a person who is unable to  write his  name  means  authenticate  in such  manner  as  may  be prescribed." It  is evident then that wherever the, element of signing  " has to be incorporated into any provision of the Act it must be construed in the sense set out above.  Therefore, whether " subscribe " is a synonym for " sign " or whether it  means "  sign " plus something else, namely a  particular  assent, the  element of " signing " has to be present: the  schedule places  that  beyond  doubt because it  requires  certain  " signature*.   "  We are consequently of opinion that  the  " signing," whenever a " signature " is necessary, must be  in strict accordance with the requirements of the Act and  that where the signature cannot be written it must be  authorised in  the  manner  prescribed  by  the  Rules.   Whether  this attaches exaggerated importance to the authorisation is  not for us to decide.  What is beyond 487 dispute  is  that this is regarded as a  matter  of  special moment  and  that special provision has been  made  to  meet -such cases.  We are therefore bound to give full affect  to this policy.     Now if " subscribe " can mean both signing, so  called,, and  the placing of a mark (and it is clear the word can  be



used in both senses), then we feel that we must give  effect to  the  general  policy  of the Act  by  drawing  the  same distinction between signing, and the making of a mark as the Act itself does in the definition of "sign." it is true  the word  "subscribe"  is not defined but it is  equally  clear, when the Act is read as’ a whole along with the form in  the second  schedule, that "subscribe" can only be used  in  the sense  of making a signature and as the Act tells  us  quite clearly  how the different types of " signature " are to  be made, we are bound to give effect, to ft.  In the case of  a person  who  is unable to write his name his "  signature  " must  be  authenticated  in " such manner as  may  be  pres- cribed." The prescribed manner is to be found in rule 2(2)of the  Representation of the People (Conduct of Elections  and Election Petitions) Rules, 1951.  It runs as follows : " For the purposes of the Act or these rules,, a person  who is  unable  to  write  his  name  shall,  unless   otherwise expressly provided in these rules, be deemed to have  signed an  instrument  or other paper if he has, placed a  mark  on such  instrument  or  other paper in  the  presence  of  the Returning  Officer  or the presiding officer or  such  other officer  as may be specified in this behalf by the  Election Commission  and  such officer on being satisfied as  to  his identity  has  attested the mark as being the mark  of  such person." In  view  of  this  we are clear  that  attestation  in  the prescribed  manner is required in the case of proposers  and seconders who are not able to write their names.     The  four nomination papers we are concerned  with  were not  " signed " by the proposers and seconders in the  usual way  by  writing  their names, and as their  marks  are  not attested  it is evident that they have not been " signed  ", in the special way which the Act 488 requires  in such cases.  If they are not " signed "  either in one way or the other, then it is clear that they have not been  "  subscribed  " because "  subscribing  "  imports  a "signature"  and  as  the Act sets out  the  only  kinds  of "signatures" which it will recognise as II signing" for  the purposes  of  the Act, we are left with  the  position  that there  are  no valid signatures of either a  proposer  or  a seconder  in  any one of the four  nomination  papers.   The Returning  Officer was therefore bound to reject them  under section  36(2)(d) of the Act because there was a failure  to comply with section 33, unless he could and should have  had resort to section 36(4). That sub-section is as follows. The Returning Officer shall not reject any nomination  paper on  the  ground of any technical defect which is  not  of  a substantial character." The  question  therefore is whether attestation  is  a  mere technical or unsubstantial requirement.  We are not able  to regard  it  in  that  light.   When  the  law  enjoins   the observance   of   a  particular  formality  it   cannot   be disregarded  and the substance of the thing must  be  there. The substance of the matter here is the satisfaction of  the Returning  Officer at a particular moment of time about  the identity of the person making _a mark in place of writing  a signature.   If  the  Returning  Officer  had  omitted   the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the  matter might  be different because the element of his  satisfaction at  the  proper time, which is of the  substance,  would  be there, and the omission formally to record the  satisfaction could  probably,  in  a case like that, be  regarded  as  an unsubstantial  technicality.  But we find it  impossible  to



say  that  when  the  law requires  the  satisfaction  of  a particular officer at a particular time his satisfaction can be   dispensed  with  altogether.   In  our  opinion,   this provision is as necessary and as substantial as  attestation in  the  cases of a will or a mortgage and is  on  the  same footing as the II subscribing " required in the case of  the candidate  himself If there is no signature and no mark  the form would have to be rejected and their 489 absence  could  not be dismissed as  technical  and  unsubs- tantial.  The "satisfaction " of the Returning Officer which the  rules  require is not, in our opinion,  any  the,  less important and imperative. The  next  question  is  whether  the  attestation  can   be compelled  by the persons concerned at the  scrutiny  stage. It  must  be  accepted  that no  attempt  was  made  at  the presentation  stage to satisfy the Returning  Officer  about the  identity of these persons but evidence was led to  show that  this  was  attempted  at  the  scrutiny  stage.    The Returning  Officer denies this, but even if  the  identities could have been proved to his satisfaction at that stage  it would  have  been too late because the attestation  and  the satisfaction  must  exist at the presentation  stage  and  a total  omission  of  such an  essential  feature  cannot  be subsequently  validated  any  more than the  omission  of  a candidate  to  sign at all could have been.  Section  36  is mandatory  and enjoins the Returning Officer to  refuse  any nomination when there has been "  any  failure  to comply with any  of  the  provisions  of section 33............... The only jurisdiction the  Return- ing Officer has at the scrutiny stage is to see, whether the nominations are in order and to hear and decide  objections. He  cannot at that stage remedy essential defects or  permit them  to  be remedied.  It is true he is not to  reject  any nomination paper on the ground of any technical defect which is  not of a substantial character but he cannot remedy  the defect.  He must leave it as it is.  If it is technical  and unsubstantial  it will not matter.  If it is not, it  cannot be set right. We  agree with the Chairman of the Election  Tribunal,  that the  Returning  Officer rightly  rejected  these  nomination papers.  The appeals are allowed with costs and the order of the  Election  Tribunal declaring the elections of  the  two successful  candidates to be wholly void is set aside.   The election petition is dismissed, also with costs.                               Appeals allowed, 63 490