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PETITIONER: S. SIVASWAMI

       Vs.

RESPONDENT: V. MALAIKANNAN AND OTHERS

DATE OF JUDGMENT27/09/1983

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) DESAI, D.A. MISRA, R.B. (J)

CITATION:  1983 AIR 1293            1984 SCR  (1) 104  1984 SCC  (1) 296        1983 SCALE  (2)418  CITATOR INFO :  R          1984 SC1513  (5)  F          1990 SC 838  (17)

ACT:      Election-Law-Representation of  the People  Act,  1951, Sections 80 to 83, 98, 100(1) (d) (iii) and (iv) and section 101-Rejection  of   ballot  papers  where  the  marking  was partially in  the column  of the candidate and partly in the shaded area  and also  those where the marking was partially in the  candidates column and partially on the dividing line in the  bottom as invalid, based on the illustration at page 40 of  the pamphlet  containing instructions  in  Tamil  and issue by  the Chief  Electoral Officer,  Tamil Nadu-Validity of-Conduct of  Election Rules,  1961-Principle of Rule 39(2) (b) explained.

HEADNOTE:      In the  General Elections  to the  Tamil Nadu  Assembly held in May 1980, the appellant contested for the llayangudi Assembly Constituency seat and was duly elected as he polled 34437 votes. The first respondent who had polled 34381 votes and missed  by a narrow margin of 56 votes filed an election petition before  the High  Court of  Madras on three grounds viz., (a)  improper rejection  by the  Returning Officer  of valid votes  cast in  favour of the respondent; (b) improper reception of  invalid votes  cast in favour of the appellant and (c)  improper treatment of valid votes cast in favour of the first respondent and the 3rd respondent as votes cast in favour  of  the  appellant.  The  High  Court  accepted  the petition on its finding on the first ground in favour of the Ist respondent  and ordered rescrutiny of the votes rejected as invalid. Hence the appeal by special leave.      Dismissing the appeal, the Court      HELD: 1:1  The  pamphlet  issued  in  Tamil  titled  "A pamphlet showing  illustrative cases  of valid  and  invalid postal and  ordinary ballot  papers "(Ex  P3) issued  by the chief  Electoral  Officer,  Tamil  Nadu  is  misleading  and therefore should be withdrawn. [111 D]      1:2. In the illustration of invalid papers appearing at page 40  of the  Book (Ex  P3), the  major  portion  of  the marking is  in the  shaded area  and a  small portion of the

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mark is  in the column of the candidate. Apparently what was intended to  be printed was an illustration showing a ballot paper in  which the  whole of  the marking was in the shaded area only  without any  portion of it being in the column of the candidate.  The illustration  as printed in the pamphlet obviously conveys  the erroneous  impression that  a  ballot paper where  the marking  is partly  in the  column  of  the candidate and partly in the shaded area is to be rejected by the Returning Officer as invalid. This is 105 directly contrary to the intendment of the relevant rule and also the  express wording  of the instructions issued by the Election Commission.                                             [110 H; 111 A-B]      In the instant case the Returning Officer was obviously misled  by  the  aforesaid  illustration  contained  in  the pamphlet, Ex.  P 3  and that  was the  sole  reason  why  he rejected as  invalid the ballot papers where the marking was contained partly  in the  column of the first respondent and partly on  the demarcating  line or  shaded  area.  Had  the Returning  Officer   taken  the   trouble   to   study   the instructions contained  in the  "Handbook for  the Returning Officer" it  should have  been  apparent  to  him  that  the illustration aforementioned  contained in  Ex.  P3  did  not correctly reflect  the position  laid down  in the rules and instructions. [111 C-D]      2:1 The  essence of  the principle in Rule 39(2) (b) of the Conduct Rules, 1961, is that so long as the ballot paper bears a  mark made  with the  instrument  supplied  for  the purpose, the  ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the  marking as  to the  identity of  the candidate  in favour of whom the vote had been given. [109 C-D]      2:2. Nearly  90% of  the  electorate  in  this  country consists of  illiterate and  uneducated rural  folk  totally unacquainted  with   the  intricacies   of  the   rules  and technicalities of procedure pertaining to elections. Even if the best  of endeavour  is made  to  explain  to  them  such complicated rules  and procedures they may not be capable of grasping and  fully understanding  all the  implications and actually carrying  them into  effect while  exercising their franchise. If  the right  conferred on  the people to choose their representatives  to the  State  Legislatures  and  the Parliament through the process of free and fair elections is to  be   meaningful  the   will  of   the   illiterate   and unsophisticated voter  expressed through  a marking  on  the ballot paper  which though not strictly inside the column of the  particular  candidate  is  clearly  indicative  of  the identity of  the candidate  for whom the vote is cast has to be  respected  and  given  its  full  effect.  The  Election Commission  has  manifested  due  awareness  of  this  stark reality while issuing instructions to the Returning Officers regarding the  principles to  be adopted  for  rejection  of ballot papers  in  the  "Handbook  for  Returning  Officers" published by  the Commission  in 1982,  and also a "Handbook for  candidates’  for  election  to  the  House  of  People, Legislative Assemblies  of States and Union Territories etc. [109 D-G]      Observation: In  order to  avoid a  recurrence of  such unfortunate instances  of illegal  rejection of votes on the basis of  misleading illustration contained in the pamphlet, Ex. P3,  it is  essential that  immediate action  should  be taken by the Chief Electoral Officer, Tamil Nadu to withdraw the  said   pamphlet  containing   illustrations   correctly reflecting the  legal  position  under  relevant  rules  and

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instructions  relating   to  the   scrutiny  acceptance   or rejection or ballot papers. [111 F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  1737 (NCE) of 1981. 106      Appeal by  Special leave  from the  Judgment and  Order dated the  29th June,  1981 of  the  Madras  High  Court  in Election Petition No. 3 of 1980.      R.K. Garg, V.J. Francis for the Appellant.      Dr.  Y.S.   Chitale,  K.   Rajendra  Choudhary  and  S. Srinivasan for Respondents.      A.V. Rangam  and Mrs,  Sarla Chandra for Respondent No. 5.      The following Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. At the conclusion of the hearing of this  appeal arising  out of  an election  petition filed under Sections  80 to  83, 98, 100(1) (d) (iii) and (iv) and Section 101  of the  Representation of  People Act,  1951 we passed the  following order  announcing the decision arrived at by us:      "The appeal is dismissed with no order as to costs. All interim orders passed by this Court are vacated.      Reasons will follow."      We now  proceed to  state the reasons in support of the aforesaid conclusion.      In the  General Elections  to the  Tamil Nadu  Assembly held in  May 1980,  the  Appellant  had  contested  for  the Ilayangudi  Assembly   Constituency  seat,   and   the   1st Respondent was  a rival candidate sponsored by the Communist Party of  India. Respondents  2, 3  and 4 had also stood for election in the same constituency as independent candidates. The polling took place on the 28th of May 1980. The counting of votes  was commenced  at 10.000  a.m. on  the 1st of June 1980 and  at 5.00  p.m. after  the postal  ballot votes were also counted,  the result  of the  election was announced by the Returning Officer, declaring that the appellant was duly elected on the ground that he had secured the highest number of votes  among the  contesting candidates. According to the results of  the counting  as announced,  the  appellant  had secured 34,  437 votes and the 1st respondent had polled 34, 381 votes.  The other  three candidates  secured only a very small number  of votes  and had  forfeited  their  deposits. Thus, it was only by a 107 narrow margin of 56 votes that the appellant was declared to have won the election.      The validity  of the election was challenged by the 1st respondent by  filing the  election petition before the High Court of  Madras praying  for an  order for the scrutiny and recounting of  all the ballot papers cast in the election to the Ilayangudi Assembly Constituency held on 28.5.80 and for a declaration  that the  election of  the appellant  to that constituency was  void and  that the 1st respondent had been duly elected  in respect  of  that  constituency.  The  main grounds urged in support of the prayer for setting aside the election  of   the  appellant  were  three-fold,  viz.,  (1) improper rejection  by the  Returning Officer of valid votes cast in favour of the 1st respondent; (2) improper reception of invalid  votes cast  in favour  of the appellant; and (3) improper treatment  of valid  votes cast  in favour  of  the first respondent  and the  3rd respondent  as votes  cast in

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favour of  the appellant. A further ground was also taken in the petition  that the  procedure adopted  by the  Returning Officer in  the counting of votes and the declaration of the result of  the election  was  not  in  accordance  with  the provisions  of   the  Representation   of  the   People  Act (hereinafter called the Act), the rules and the instructions issued in that regard.      After a  detailed discussion of the evidence adduced in the case  the learned  single Judge  of the  High Court, who tried the  election petition,  found that there was no basis for the  allegation made  in the petition that the procedure adopted by  the Returning  Officer in  the counting of votes was not  in accordance  with the  relevant provisions of the Act, the rules and the instructions. It was further found by the learned  Judge that  the averment  made in  the petition that valid  votes cast  in favour  of the 1st respondent and the 3rd  respondent had  been improperly  treated  as  votes polled in  favour of  the appellant  was devoid  of  factual foundation. However,  on the  issue relating to the question whether there  had been  improper rejection  of valid  votes cast in  favour of  the 1st respondent herein (petitioner in the election  petition), the learned Judge found that it was clearly established  by  the  evidence  that  the  Returning Officer had  erroneously and  illegally rejected  as invalid ballot papers  in which  the marking had been done either on the demarcation  line at  the bottom of the 1st respondent’s column-the first respondent’s name was printed on the ballot paper as the last name immediately beneath the said name was the demarcation  line at  the  bottom-or  partially  on  the demarcation 108 line and  partially in the column of the 1st respondent. The difference in  votes  between  the  appellant  and  the  1st respondent being  only 56, the learned Judge held that there should be  a rescrutiny  of the rejected votes and a recount in the  light of  such scrutiny  should be  undertaken.  The total number  of votes rejected on different counts was 751. The 1st  respondent deposed  in his evidence that there were as many  as about  300 votes cast in his favour in which the marking was  partially on the demarcation line and partially in the  column where  his name  was printed and they had all been rejected.  The Returning  Officer, in his testimony, as RW 2,  admitted that  he had  treated such  ballot papers as invalid but  asserted that the total number of ballot papers rejected on the said ground was only 127. The learned single Judge was  of opinion  that even  if the  version  of  RW  2 regarding the  number  of  ballot  papers  rejected  on  the aforesaid  ground   was  to  be  accepted  as  correct,  the Returning Officer  had committed a manifest illegality while counting the votes and the declaration of the result made on the basis  of such  defective counting  had  to  set  aside. Accordingly, the  High Court  directed a  re-scrutiny and  a recount of  all the  rejected votes to be carried out in the premises of  the High Court. The learned Judge appointed one of Assistant  Registrars of  the High  Court  was  Presiding Officer to  supervise the  recounting. The  Chief  Electoral Officer was  directed to  cause the  production of  all  the rejected  votes   in  respect  of  the  Ilayangudi  Assembly constituency at  the election held on 28.5.1980. A direction was also  issued to the Returning Officer-5th respondent -to render all  necessary assistance  to enable  the re-scrutiny and recounting  to be  properly carried out by the Assistant Registrar as  presiding officer.  It  is  against  the  said decision of the High Court that this appeal by special leave has been preferred.

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    The Returning Officer, in the testimony given by him as RW2, has  admitted in categorical terms that he had rejected as invalid  ballot papers where the marking was partially in the column of the candidate and partially in the shaded area and also  those where  the  marking  was  partially  in  the candidate’s column and partially on the dividing line in the bottom. His explanation was that in doing so he had strictly followed the  instructions constrained  in the  booklet  P3, entitled "Instructions  to counting  staff" issued  in Tamil language by  the Chief  Electoral Officer  of Tamil  Nadu in connection with  the elections to the Tamil Nadu Legislative Assembly, 1980.      Rule 39(2)  (b) of  the Conduct  of Election Rules 1961 requires an  elector to make a mark on the ballot paper with the instrument 109 supplied for  the purpose  "on or  near the  symbol  of  the candidate for  whom he  intends to vote". Rule 56(2) directs the   Returning   Officer   to   reject   a   ballot   paper "(a)..................... or  (b) if it bears no mark at all to indicate  the vote, or it bears a mark else where than on or near  the symbol  of one of the candidates on the face of the ballot  paper or,  it bears  a mark  made otherwise than with  the   instrument  supplied   for   the   purpose,   or (c)........................, or  (d) if  the mark indicating the vote  thereon is  placed in  such a manner as to make it doubtful to  which candidate  the vote  has been given." The essence of the principle incorporated in the rule is that so long as  the  ballot  paper  bears  a  mark  made  with  the instrument supplied  for the purpose, the ballot paper shall not be  rejected as invalid, if it is reasonably possible to gather a  definite indication  from the  marking as  to  the identity of  the candidate  in favour  of whom  the vote had been given. In this context it is necessary to remember that nearly 90%  of the  electorate in  this country  consists of illiterate and  uneducated rural  folk totally  unacquainted with the  intricacies of  the rules  and  technicalities  of procedure pertaining  to elections.  Even  if  the  best  of endeavour is  made to explain to them such complicated rules and procedures they may not be capable of grasping and fully understanding all  the implications  and  actually  carrying them into  effect while  exercising their  franchise. If the right   conferred    on   the   people   to   choose   their representatives to the State Legislatures and the Parliament through the  process of  free and  fair elections  is to  be meaningful the  will of  the illiterate  and unsophisticated voter expressed  through a marking on the ballot paper which though not  strictly inside  that column  of the  particular candidate is  clearly indicative  of  the  identity  of  the candidate for  whom the vote is cast has to be respected and given its  full effect.  It is  gratifying to  note that the Election Commission  has manifested  due awareness  of  this stark reality  while issuing  instructions to  the Returning Officers  regarding   the  principles   to  be  adopted  for rejection of  ballot papers  in the  "Handbook for Returning Officers" published by the Commission in 1982. At page 90 of the book,  the Returning  Officers have  been instructed  to reject a ballot paper only-      (i)  when there  is no  mark at all on the front or the           mark is  made otherwise  than with  the instrument           supplied for the purpose;      (ii) when the mark is in blank area, that is to say, at           the back or entirely in the shaded area; or 110      (iii)when  there   are  marks   against  two   or  more

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         candidates;      (iv) When there  is any  writing or  mark by  which the           voter can be identified; or      (v)  when  the   ballot  paper   is  mutilated   beyond           recognition; or      (vi) when the  ballot paper  is not  genuine or  it  is           spurious. The Election  Commission has  also issued  a  "Handbook  for candidates"  for  election  to  the  House  of  the  People, Legislative Assemblies of States and Union Territories, etc. At page  78 of  the book, it is specifically stated that the Returning Officer  will not  reject any  ballot paper simply because the  mark is only partially within the column of one candidate and  the rest of the mark is in the blank area. It has also clarified that a ballot paper shall not be rejected merely on  the ground  that the  mark indicating and vote is indistinct or made more than once, if the intention that the vote is  for a particular candidate clearly appears from the way the  paper  is  marked.  The  matter  has  been  further clarified in a pamphlet issued by the Election Commission of India in  1982 entitled"  A  Pamphlet  showing  illustrative cases of  valid  and  invalid  postal  and  ordinary  ballot papers". The illustration at page 17 of the pamphlet depicts a case  where the  mark  affixed  on  the  ballot  paper  is partially in  the column of the candidate No. 1, the rest of it being  in the shaded area and it is clearly directed that in  such  cases  the  ballot  paper  should  be  treated  as containing a  valid vote  in favour  of Candidate No. 1. The Chief Electoral  Officer of  Tamil Nadu had issued a similar pamphlet containing  instructions in  Tamil to  the counting staff  purporting  to  be  in  terms  identical  with  those contained in  the Handbook  and the  pamphlet issued  by the Election Commission  of India,  Ex.P3 marked in this case is the pamphlet  so issued in Tamil by the Chief Officer, Tamil Nadu. Ex.P3 contains illustrative cases of valid and invalid postal and  ordinary ballot papers and in publishing it, the obvious  intention   was  to   have  the   illustrations  on indentical lines  as those  found in  corresponding pamphlet issued by  the Election  Commission of India. Unfortunately, however,  in  the  illustration  of  invalid  ballot  papers appearing at  page 40 of the Book (Ex.P3), the major portion of the  marking is in the shaded area and a small portion of the mark  is in the column of the candidate. Apparently what was intended to be printed was an illustration 111 showing a  a ballot  paper in which the whole of the marking was in  the shaded area only without any portion of it being in the  column of the candidate. The illustration as printed in the  pamphlet obviously  conveys the erroneous impression that a  ballot paper  where the  marking is  partly  in  the column of  the candidate and partly in the shaded area is to be rejected  by the  Returning Officer  as invalid.  This is directly contrary to the intendment of the relevant rule and also the  express wording  of the instructions issued by the Election Commission.      In the  case  before  us,  the  Returning  officer  was obviously misled  by the aforesaid illustration contained in the pamphlet, Ex.P.3 and that was the sole reason why he was rejected as  invalid the ballot papers where the marking was contained partly  in the  column of the first respondent and partly on  the demarcating  line or  shaded  area.  Had  the Returning  Officer   taken  the   trouble   to   study   the instructions contained the "Handbook for the candidates" and the "Handbook  for the  Returning Officers"  it should  have been apparent  to him  that the  illustration aforementioned

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contained in  Ex. P3  did not correctly reflect the position laid down in the rules and instructions. It follows that the High Court  was perfectly right in holding that the counting and declaration  of the  results in  the instant  case  were vitiated by  serious  illegality  and  in  directing  a  re- scrutiny and  recounting of  all  the  rejected  votes.  The appeal is, therefore, devoid of merits.      Before we  part with the case, we consider it necessary to observe  that in  order to  avoid a  recurrence  of  such unfortunate instances  illegal rejection  of  votes  on  the basis  of  the  misleading  illustration  contained  in  the pamphlet, Ex.  P3, it  is essential  that  immediate  action should be  taken by the Chief Electoral Officer, Tamil Nadu, to withdraw  the  said  pamphlet  from  circulation  and  to substitute  it   by  issuing  a  fresh  pamphlet  containing illustration correctly  reflecting the  legal position under relevant rules  and instructions  relating to  the scrutiny, acceptance of rejection of ballot papers.      The Registrar  will forward  copies of this judgment to the Election  Commission of India and to the Chief Electoral Officer, Tamil  Nadu, for necessary early action being taken in the light of our foregoing observations, S.R.                                       Appeal dismissed. 112