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PETITIONER: SHRADHA DEVI

       Vs.

RESPONDENT: KRISHNA CHANDRA PANT & OTHERS

DATE OF JUDGMENT26/10/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, A.P. (J)

CITATION:  1982 AIR 1569            1983 SCR  (1) 681  1982 SCC  (3) 389        1982 SCALE  (2)964  CITATOR INFO :  F          1983 SC1311  (16)  R          1984 SC 382  (2)

ACT:      Representation  of   the  People   Act,   1951-Election Petition-Elector’s  duty-Nature   of  proof-Required  for  a relief of scrutiny and recount on the allegation of miscount in an election petition.

HEADNOTE:      The appellant  was one  of the 19 candidates for the 11 members to  be elected at the biennial election for electing members to  Council  of  States  from  the  constituency  of elected members  of the  Uttar Pradesh Legislative Assembly, at the election held on 28th March, 1979.      The election was to be in accordance with the system of proportional representation  by means of single transferable vote. In  all 421  members exercised their franchise. Eleven ballot papers  were rejected  by the  returning  officer  as invalid and  the 1st  Respondent was declared elected in the 14th count.      The appellant,  thereupon, filed  an election  petition under section 81 of the 1951 Act before the Lucknow Bench of the Allahabad  High Court  for scrutiny  and recount  on the allegation of  miscount. The  appellant alleged that (i) the result of the election in so far as it concerns the returned candidate (i.e.) 1st respondent-has been materially affected by  the   improper  rejection  of  valid  votes  by  wrongly declaring them  invalid as  well as by improper reception of what otherwise  would have  been the  invalid votes  if  the Returning Officer  had been consistent in his approach, and, therefore, the  election of  the returned candidate not only should be  declared void  but  in  his  place  by  a  proper computation of  votes, the  petitioner  should  be  declared elected to the 11th vacancy, (ii) there had been an improper rejection of the valid votes cast in her favour and that has materially affected  the result  of the  election; and (iii) even though  it was obligatory upon the Returning Officer to show all  the ballot papers which he rejected as invalid, to the candidates  and/or their counting agents, he only showed four out of the eleven ballot papers held invalid by him and did not  show the rest of them. Even these four were wrongly

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rejected and  cannot be  said to be covered by Rule 73(2)(d) of the Election Rules. The High Court dismissed the election petition and hence the appeal by special leave.      The appellant  contended that (i) where the election is to be  held in  accordance with  the system  of proportional representation by  means of the single transferable vote, if the first preference is properly and ascertainably cast any 682 error in  setting out  the remaining  preferences would  not enable the  Returning Officer  to reject  the  whole  ballot paper; and  (ii) every  unrequired  mark,  cutting,  erasure cannot tantamount  to any  indication which would enable the voter to  be identified but the writing or mark must be such that the voter can be and not merely might be identified and there is  no such cutting mark or erasure within the meaning of Rule 73(2)(d) of the Conduct of Election Rules; 1961.      Allowing the appeal, the Court ^      HELD: 1:1.  When a  petition is  for relief of scrutiny and recount  on the  allegation of  miscount, the petitioner has to  offer prima facie proof of errors in counting and if errors in  counting are  prima facie  established, a recount can be  ordered. If  the allegation is of improper rejection of valid  votes which  is covered  by the  broad spectrum of scrutiny and  recount because  of miscount,  petitioner must furnish prima  facie  proof  of  such  error.  If  proof  is furnished of  some errors  in respect of some ballot papers, scrutiny and  recount cannot  be  limited  to  those  ballot papers only.  If the  recount is  limited  to  those  ballot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc  in a Parliamentary constituency where more often 10,000 or more votes are rejected as invalid. [690 A-C]      1:2. Law  does not  require that  while giving proof of prima facie  error in  counting each  head of  error must be tested by  only sample  examination of  some of  the  ballot papers  which   answer  the   error  and   then  take   into consideration only  those ballot papers and not others. This is not  the area  of inquiry  in a  petition for  relief  of recount on  the ground  of miscount.  True  it  is  that  ’a recount is  not granted as of right, but on evidence of good grounds for  believing that  there has been a mistake on the part of  Returning  Officer.  Prima  facie  proof  of  error complained of  must be  given by the election petitioner and it must  further be  shown  that  the  errors  are  of  such magnitude that  the result  of the  election so  far  as  it affects the  returned candidate is materially affected, then recount is directed. [690 C-E]      1:3. It  is not  the requirement of law that in respect of each ballot paper rejected as invalid a specific averment must be so ma e as to identify the ballot paper and the only those that  can be  correlated to  the  allegations  in  the petition specifically  and not generally shall be recounted. That is  contrary to  the requirement  of the  Act  and  the Rules. [691 B-C]      2:1. A  combined reading  of Rules 37A(1), 73(2)(a) and 73(2)(b) of  the conduct of Election Rules 1961, makes clear that when  voting is  in accordance  with  the  proportional representation by  means of  the single transferable vote it is obligatory to cast the first preference vote for ensuring the validity  of the  ballot paper  and the first preference vote must  be so cast as not to leave any one in doubt about it. The remaining preferences are optional with the elector. He may  or may  not exercise his franchise for the remaining preferences. Rule  73(2) is  exhaustive of  the  grounds  on

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which a  ballot paper  at a  voting at  election by Assembly members shall  be rejected  as invalid  and on a true and in depth reading of it, it does not transpire that the 683 failure to  cast the  remaining preferences would invalidate the ballot  papers. This  is so  because under  rule  37A(1) every elector  has only one vote at an election irrespective of the  number of  seats to  be filled. The vote is only one and even  if there  is more  than one  seat to be filled in, subsequent preferences  may be  indicated by the elector and it is  optional with him not to exercise preferences outside his  only   one  vote  which  he  must  cast  by  indicating unambiguously his first preference. [695 D-G]      2:2. If  there is only one vote at such an election and the  preferences   are  as   many   as   there   are   seats chronologically to  be indicated  and  failure  to  exercise preferences  subsequent   to  first   preference  would  not invalidate the  ballot paper,  it must follow as a corollary that if  the elector  has committed some error in exercising his preferences  lower down  the ladder  the  whole  of  the ballot paper  cannot be  rejected as  invalid. Therefore, it must follow that not only such a ballot paper has to be held as valid  ballot paper  but its validity shall continue upto the  stage  in  preferences  where  an  error  or  confusion transpires which  would not permit computation of subsequent preferences below  the level  of error.  To  illustrate  the point if  as in  the present  case the  voter had  option to exercise  11   preferences  and  if  he  has  exercised  his preferences 1  to 5  correctly  and  unambiguously  and  has committed an  error in  exercising sixth  preference and  it cannot be said with certainty for whom the sixth preferences vote was  cast, the  ballot paper  has to  be held  valid in computation  of  votes  upto  and  inclusive  of  the  fifth preference and rejected for the preferences down below as if the elector  has not exercised his further preferences which was  optional  with  him.  The  ballot  paper  can  thus  be partially valid  and this  is the  logical  outcome  of  the system of voting. [695 F-H, 696 A-C-E]      3:1. Free  and fair  election being the fountain source of Parliamentary  democracy attempt of the Returning Officer and the  Court should  be not  to chart  the easy  course of rejecting ballot  papers  as  invalid  under  the  slightest pretext but  serious attempt should be made before rejecting ballot papers  as invalid to ascertain, if possible, whether the elector  has  cast  his  vote  with  sufficient  clarity revealing  his  intendment.  In  this  case,  the  Returning Officer has charted an easy course unsupportable by evidence and the  High Court  failed to  exercise its jurisdiction of scrutiny of  all ballot papers once a serious error has been pointed out  in respect  of two ballot papers out of a total of 11 invalid ballot papers. [700 E-G]      3:2 Rule  73(2)(d), provides  that a ballot paper shall be invalid  on which,  there is any mark or writing by which the  elector   can  be   identified.  Section   94  of   the Representation of People Act, 1951 ensures secrecy of ballot and it  cannot be  infringed because  no  witness  or  other person shall  be required  to state for whom he has voted at an election.  To ensure  free and  fair  election  which  is pivotal for setting up a parliamentary democracy, this vital principle was  enacted in s. 94 to ensure that a voter would be able  to vote  uninhibited by any fear or any undesirable consequence of disclosure of how he voted. As a corollary it is provided  that if  there is  any mark  or writing  on the ballot paper  which enables the elector to be identified the ballot paper would be

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684 rejected as invalid. But the mark or writing must be such as would unerringly lead to the identity of the voter. Any mark or writing  of an  innocuous nature  or  meaningless  import cannot be  raised to  the level  of such  suggestive mark or writing as  to reveal  the identity of the voter. There must be some  causal connection between the mark and the identity of the voter that looking at one the other becomes revealed. Therefore the  mark or a writing itself must reasonably give indication of the voter’s identity. It may be that there may be extrinsic evidence from which it can be inferred that the mark was  placed by the voter by some arrangement. [697 F-H, 698 A-D]      Raghubir Singh  Gill v. Gurcharan Singh Tohra & Others, [1980] 3 S.C.R. 1302; followed.      Woodward v.  Sarsons &  Another, [1874-75] 10 L.R. (CP) 733, quoted with approval.      3:3. The  words "can  be identified"  in Rule  73(2)(d) cannot  be   interpreted  to   mean   "might   possibly   be identified". The  mark or writing which would invalidate the ballot paper  must be  such as  to unerringly  point in  the direction of  identity of  the  voter.  In  the  absence  of suggested  mark  or  writing  the  ballot  paper  cannot  be rejected merely because there is some mark or writing on the ground that  by  the  mark  or  writing  the  voter  may  be identified. [698 D-F]      Sohan  Lal  v.  Abinash  Chander  &  Others,  [1953]  4 Election Law Reports, 55 approved.      3:4. In  the  instant  case,  (i)  there  was  specific averment in  para 18 of the petition that the marks were not such as  to lead  to identity  of the  elector and  that the ballot papers  could not  be rejected  as invalid under rule 73(2)(d). This  allegation  is  wholly  substantiated  by  a casual look  at the  remaining nine ballot papers. The error is  apparent;  Once  the  error  has  been  established  the scrutiny and recount had to be ordered as a prima facie case of miscount  is made out and, therefore, the decision of the High Court is liable to be set aside, (ii) As the High Court has not  undertaken to  examine the  validity of each ballot paper it  would not  be proper  for  the  Supreme  Court  to undertake the  same for  the  first  time  here;  (iii)  the position of  law having  been made  very clear, namely, that once an  error is  established it  is not necessary that the pleadings must  show error  in respect  of  each  individual invalid ballot  paper, and  a prima  facie  proof  of  error resulting in miscount having been established a scrutiny and recount has  to be  ordered. And  the  serutiny  of  invalid ballot papers must precede the recount; and (iv) there is no evidence of  any prior arrangement between candidate and the voter regarding identity and (v) the ballot papers could not have been rejected on the ground mentioned in rule 73(2)(d), such marks, being in this case, some erasures or a bracket.                                           [699 F-H; 700 A-A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 277 of 1980. 685      (From the  Judgment and  Order dated the 11th December, 1979 of  the Allahabad High Court in Election Petition No. 2 of 1978.)      A.P.S. Chauhan, C.K. Ratnaparkhi and D.P.S. Chauhan for the Appellant.

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    A.N. Sen and C.P. Lal for Respondent No. 1.      S.S. Khanduja for RR. 4 & 5.      Miss Kamlesh Bansal for Respondent No. 16.      The Judgment of the Court was delivered by      DESAI, J.  An unsuccessful  candidate for  election  to council of  States (Rajya  Sabha) at  the election  held  on March 28,  1979, is  the appellant. At the biennial election for  electing   members  to   Council  of  States  from  the constituency  of   elected  members  of  the  Uttar  Pradesh Legislative Assembly,  19 candidates including the appellant and the 1st respondent were duly nominated as candidates. 11 members were  to be  elected. Election  was to  be  held  as mandated by  clause (4) of Article 80 of the Constitution in accordance with the system of proportional representation by means of  the single  transferable vote.  After the poll was closed according  to the  time prescribed  by  the  Election Commission under  s. 56  of the Representation of the People Act, 1951 (’1951 Act’ for short), the Returning Officer, PW. 4 Satya  Priya Singh  commenced counting  of votes.  As  the election  was  to  be  in  accordance  with  the  system  of proportional  representation   by  means   of   the   single transferable vote, the Returning Officer as required by rule 76 of  the Conduct  of Election  Rules,  1961  (’Rules’  for short), proceeded to ascertain the quota. In all 421 members exercised the  franchise. Eleven ballot papers were rejected by the  Returning Officer  as invalid. Accordingly the quota was worked  out at  the value  of 3417.  Respondents 2 to 11 were declared  elected as  each of them secured the value of ballot papers  greater than  the  quota  in  the  course  of counting. As the counting proceeded further, the contest was between the  election petitioner  (appellant)  and  the  1st respondent and  the 1st  respondent was  declared elected in the 14th  count. Once  all the  11 vacancies were filled in, counting was closed.      Petitioner filed  an election  petition under  s. 81 of the 1951  Act in  the  High  Court  of  Judicature  (Lucknow Bench), Lucknow. The 686 petition was  for scrutiny  and recount on the allegation of miscount and  directed against the 1st respondent because he was declared elected to the last vacancy.      Petitioner alleged  that the  result of the election in so  far   as  it  concerns  the  returned  candidate  -  1st respondent has  been materially  affected  by  the  improper rejection of  valid votes  by wrongly declaring them invalid as well  as by  improper reception  of what  otherwise would have been  the invalid  votes if  the Returning  Officer had been consistent in his approach and, therefore, the election of the  returned candidate  not only should be declared void but in  his place  by a  proper  computation  of  votes  the petitioner should  be declared  elected to the 11th vacancy. The petition  primarily being  for relief  of  scrutiny  and recount on  the allegation  of miscount  it was necessary to allege and offer prima facie proof of the possible errors in the counting  which, if  satisfactorily  established,  would enable the  court to direct a recount. It may be stated that no prima  facie proof  has  been  offered  of  the  improper reception of  an otherwise invalid vote in favour of the 1st respondent and  that allegation may be excluded from further consideration. Petitioner  alleged that  there has  been  an improper rejection of the valid votes cast in her favour and that has  materially affected  the result  of the  election. Petitioner states  that even  though it  was obligatory upon the Returning Officer to show all the ballot papers which he rejected as  invalid to the candidates and/or their counting

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agents, he  only showed  four out  the eleven  ballot papers held invalid  by him  and did  not show the rest of them. To the question  as to why votes were rejected as invalid it is alleged that  the Returning  Officer informed  the  counting agents that  there were  marks and  cuttings in  the  ballot papers  which   may  possibly   identify  the   voters  and, therefore, such  ballot papers  have been  rejected  on  the ground set  out in  rule 73  (2)  (d)  of  the  Rules.  Four specific allegations  of error,  improper rejection of votes otherwise valid  necessitating scrutiny  and recount are set out in  paras 14, 15, 17 and 18 of the election petition. It was also  alleged that of the four ballot papers shown there was one in which first preference was indicated in favour of the petitioner  but  that  was  illegally  rejected  by  the Returning  Officer  on  the  ground  that  it  contained  an overwriting in respect of the 10th preference vote marked by the voter.  The second error alleged in the petition is that in one  ballot paper  the 4th preference figure was put in a bracket and  this was  illegally rejected on the ground that the voter can be identified. The 687 third allegation  is to  the effect  that the  ballot  paper containing a  1st preference  vote cast  in  favour  of  the candidate Shri  Surendra Mohan was illegally rejected by the Returning Officer on the ground that the voter had given his 1st preference  vote at two places whereas in fact the voter had given  his 1st  preference vote  only to  Shri  Surendra Mohan  and   had  given  11th  preference  vote  to  another candidate  which   could  be   demonstrably  established  by scrutiny of  the ballot  paper. The  fourth error alleged to have crept  in the  counting was  that the Returning Officer invalidated two other ballot papers on the ground that there were overwritings  in  the  8th  and  9th  preference  votes respectively and  that even  though these  ballot papers did not contain any mark or writing by which the voters could be identified, they  were rejected  as invalid  contrary to the relevant provision.  It was  urged that  these  prima  facie errors when  substantiated would  clearly make out a case of miscount and  the same  can be  corrected  by  scrutiny  and recount. The  scrutiny and recount was sought to be confined specifically  to  the  decision  of  the  Returning  Officer rejecting  11   votes  as   invalid.  The  contentions  were crystylised in the course of hearing of the appeal by urging that where the election is to be held in accordance with the system of proportional representation by means of the single transferable vote,  if the  first preference is properly and ascertainably cast  any error  in setting  out the remaining preferences would not enable the Returning Officer to reject the whole  ballot paper  as  invalid.  The  second  specific contention is  that every  unrequired mark, cutting, erasure cannot tantamount  to any  indication which would enable the voter to  be identified but the writing or mark must be such that the voter can be and not merely might be identified and there is no such cutting, mark or erasure.      The 1st  respondent contested the petition, inter alia, contending that  the quota  was not 3417 as contended for on behalf  of   the  petitioner   but  it  was  3217  and  that respondents 2 to 11 received more than quota hence they were declared elected  and that the contest continued between him and the  petitioner and in the 14th count the 1st respondent was declared  elected as  the value  of  his  ballot  papers exceeded the  value of  ballot papers  of  other  continuing candidates together  with the surplus votes not transferred. He specifically  denied though  he was  not present  at  the counting that all the ballot papers rejected at the counting

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were not  shown to the counting agents and contended that no error in  counting is  shown and  that it is not open to the court to direct recount 688 by first  examining the  ballot papers  rejected as invalid. Some technical  contentions were  taken by him with which we are not concerned in this appeal.      A learned  single Judge  of the  High Court to whom the election petition  was assigned  framed as many as 11 issues on which  the parties  were at  variance. In  the course  of hearing of  the petition the petitioner moved an application for a  direction that  an inspection of the 11 ballot papers rejected as invalid by the Returning Officer may be given to the petitioner. The Court directed inspection of four ballot papers to  be given  as per order dated May 2, 1979. The 1st respondent,   the    returned   candidate   questioned   the correctness of  this order  in this  Court in  special leave petition filed  by him. In the mean time all the disputed 11 ballot papers  were summoned  from the Returning Officer and the Court  directed the  Joint Registrar  to open the sealed packet containing  ballot papers  and  consistent  with  the allegations in  paras 14, 15, 17 and 18 of the petition, try to correlate  the ballot  papers in  respect  of  which  the allegation of  improper rejection  may prima facie appear to be of  substance and  give inspection  of those  four ballot papers to  both the  parties. The  learned counsel appearing for the  petitioner was  not inclined  to take inspection in this truncated  manner and disclosed his desire to move this Court against  the order  granting only  inspection of  four ballot papers.  The learned Judge by his order dated May 16, 1979, directed  that the sealed packet containing the ballot papers shall not be opened until further orders of the Court and the  same shall  be kept  in safe custody with the Joint Registrar. It  appears, thereafter  the petitioner preferred the special  leave petition  but ultimately the same appears to have been withdrawn and sought direction of the Court for compliance with  the order for showing four ballot papers as per the  previous order. The Court accordingly directed that the Joint  Registrar shall  open the  sealed packet  of  the rejected ballot  papers and  allow the returned candidate or his counsel and the petitioner or her counsel to have visual inspection of the ballot papers without allowing the parties or their  counsel to handle the ballot papers. Time and date of  the  inspection  was  fixed  by  the  Court.  The  Joint Registrar  opened   the  sealed   envelope  but  found  some difficulty  in   complying  with  the  order  of  the  Court directing giving  of inspection of four ballot papers out of 11 rejected ballot papers because there was no specification as to which four ballot papers were to be the subject-matter of inspection. Ultimately he 689 took recourse  to the  averments in  the petition,  examined each allegation,  attempted to  correlate it  to the  ballot papers in  his hand  and found  that only  two ballot papers could be  correlated to the allegations made in the petition and gave  inspection of  two ballot  papers and kept other 9 ballot papers,  of which  he did  not  give  inspection,  in sealed envelope.  On this  report of the Joint Registrar the learned Judge  called for the sealed envelope, opened up the envelope in  the presence  of the  learned counsel  for  the parties to verify the correctness of the report of the Joint Registrar and  being satisfied  that it was correct, he made an order to that effect on December 5, 1979.      Thereafter the  parties  went  to  trial.  Neither  the unsuccessful  candidate,   the  petitioner,   nor  the   1st

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respondent, the returned candidate, stepped into the witness box. On  behalf of  the petitioner  PW. 1  Shri  Shakir  Ali Siddiqi,  PW.  2  Udit  Narain  Sharma,  election  agent  of candidate Shri  Surendra Mohan,  and PW.  3  Kalpnath  Singh election agent  of  the  petitioner  were  examined.  RW.  1 Habibul Rahman  Nomani, counting agent of Smt. Manohara, RW. 2  Deo   Bahadur  Singh,  election  agent  of  the  returned candidate  1st   respondent,  RW.  3  Prabhat  Kumar  Misra, observer deputed  by the Election Commission and RW. 4 Satya Priya Singh,  Returning Officer  were examined  on behalf of the returned candidate.      The learned  Judge rejected  the petition substantially holding that  the petitioner  has failed  to prove  that all eleven rejected ballot papers were not shown to the counting agents. It  was held  that petitioner  failed to  prove such error in  counting which  would enable her to seek relief of scrutiny and  recount. In  reaching  this  conclusion,  with great respect,  the learned judge has completely misdirected himself as  to the  nature of proof required for a relief of scrutiny and  recount on  the allegation  of  miscount.  The learned Judge  first took  up the  allegations of  errors in counting, more  particularly directed  to the  allegation of improper rejection  of valid  votes which  would  materially affect the  result as  set out in paras 14, 15, 17 and 18 of the petition,  and  then  through  the  help  of  the  Joint Registrar excluded  the nine  ballot papers  without  giving inspection and  only  took  into  consideration  two  ballot papers which  answered the  error as  complained of and then proceeded to  hold that  even if  these  two  ballot  papers rejected as  invalid are taken into account and the value of the votes  computed, the  result  would  not  be  materially affected and, therefore, rejected the election petition. 690      When a  petition is  for relief of scrutiny and recount on the  allegation of  miscount, the petitioner has to offer prima facie  proof of  errors in  counting and  if errors in counting are  prima  facie  established  a  recount  can  be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because  of miscount,  petitioner must furnish prima facie proof  of such  error. If  proof is  furnished of some errors in  respect  of  some  ballot  papers,  scrutiny  and recount cannot  be limited  to those  ballot papers only. If the recount  is limited to those ballot papers in respect of which  there   is  specific  allegation  of  error  and  the correlation is established, the approach would work havoc in a Parliamentary constituency where more often we find 10,000 or more  votes being  rejected  as  invalid.  Law  does  not require that  while giving  proof of  prima facie  error  in counting each  head of  error must  be tested by only sample examination of  some of  the ballot  papers which answer the error and  then take  into consideration  only those  ballot papers and  not others. This is not the area of inquiry in a petition for  relief of  recount on  the ground of miscount. True it  is that  ’a recount is not granted as of right, but on evidence  of good  grounds for  believing that  there has been a  mistake on  the  part  of  Returning  Officer’  (See Halsbury’s Laws  of England,  4th Edn,,  Vol. 15, para 940). This Court has in terms held that prima facie proof of error complained of  must be  given by the election petitioner and it must  further be  shown  that  the  errors  are  of  such magnitude that  the result  of the  election so  far  as  it affects the  returned candidate is materially affected, then recount  is  directed.  What  was  broadly  alleged  by  the petitioner in  the election petition was that where election

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is held  in accordance  with the proportional representation by the  single transferable  vote it  would be  illegal  and erroneous for  the Returning  Officer to reject as invalid a ballot paper  if after first preference vote is validly cast some  error   is  committed   in  indicating  the  remaining preferences. Instances  of error  is committed in indicating the remaining  preferences. Instances  of error  set out  in paras 14,  15, 17  and 18 spelt out a ground that the ballot papers which  were rejected  under rule  73 (2)  (d) did not contain or carry any mark or writing by which elector can be identified and  that there  has been thus improper rejection of a  vote otherwise  validly cast  or  which  is  partially valid. Without  allowing  inspection  of  all  the  disputed ballot papers  the learned  judge has accepted that at least two ballot papers can be correlated to allegation in para 15 and 17  which  would  prove  the  allegations  made  in  the petition. The learned Judge, 691 however held  that the  rejection of these two ballot papers was correct.  A further  observation is  that  even  if  the rejection of these two ballot papers is held to be improper, the result  of the  election so far as returned candidate is concerned is  not  materially  affected.  And  it  would  be succinctly pointed out that allegation in para 18 in respect of two  other ballot papers is wholly substantiated. Even at the cost  of repetition  it must  be said that it is not the requirement of  law that  in respect  of each  ballot  paper rejected as  invalid a  specific averment must be so made as to identify  the ballot  paper and  only those  that can  be correlated to  the allegations  in the petition specifically and not  generally shall  be recounted.  That is contrary to the requirement of the Act and the Rules.      The  impermissible   approach  of   the  learned  Judge compelled us  with the  consent of  learned counsel  of  the parties to  call  for  the  11  ballot  papers  rejected  as invalid. A  direction to open sealed envelopes was given and at the request of learned counsel for the parties Xerox copy of each  ballot paper was supplied to both the sides and the appeal was further set down for hearing.      We now  proceed to  examine  the  contentions  in  this petition.  Let   us  first  have  a  look  at  the  relevant constitutional  and  statutory  provisions.  Clause  (4)  of Article 80  provides that  the representatives of each State in the  Council of  States shall  be elected  by the elected members  of   the  Legislative  Assembly  of  the  State  in accordance with the system of proportional representation by means of  the single  transferable vote.  The fasciculous of Rules in Parts VI and VII of the Rules are relevant. Part VI is headed  ’Voting at  Elections  by  Assembly  Members  and Council  Constituencies’.   Rule  70   provides   that   the provisions of  rules 28 to 35 and 36 to 48 shall apply : (a) to every election by assembly members in respect of which no direction has  been issued  under clause  (a)  of  rule  68, subject to  the modifications  set out  in the  sub-rules of Rule 70.  The important  modification of  which we must take notice is  the introduction  of rule  37A  setting  out  the method of voting at such election. It may be extracted :           "37A. Method  of voting-(1) Every elector has only      one vote  at an  election irrespective of the number of      seats to be filled. 692           (2)  An elector in giving his vote-                (a)  shall place  on  his  ballot  paper  the                     figure 1  in the space opposite the name                     of the  candidate for  whom he wishes to

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                   vote in the first instance, and                (b)  may, in  addition, place  on his  ballot                     paper the  figure 2,  or, the  figures 2                     and 3, or the figures, 2, 3 and 4 and so                     on in  the space  opposite the  names of                     the other candidates in the order of his                     preference.           Explanation-The figures referred to in clauses (a)      and  (b)   of  this  sub-rule  may  be  marked  in  the      international from  of Indian  numerals or in the Roman      form or  in the  form used  in any  Indian language but      shall not be indicated in words".      Part VII  is headed  ’Counting of votes at Elections by Assembly Members  or in  Council Constituencies’. It defines expressions  such   as   ’continuing   candidate’   ’count’, ’exhausted  paper’   ’first  preference’,   original  vote’, surplus’ transferred  vote’ and ’unexhaused paper. These are technical terms  each having  bearing  on  the  question  of counting of  votes. ’First preference’ vote has been defined to mean the figure 1 set opposite the a name of a candidate; ’second preference’ means the figure 2 set opposite the name of a  candidate: ’third  preference’ means  the figure 3 set opposite the name of a candidate, and so on. ’Original vote’ is defined  to mean  in relation  to any  candidate, a  vote derived from  a ballot  paper on which a first preference is recorded, for  such candidate. Rule 73 provides for scrutiny and opening  of ballot  boxes and  packets of  postal ballot papers. Sub-rule  (2) of  rule 73  is material  which may be extracted:      "73. Scrutiny and  opening of  ballot boxes and packets           of postal ballot papers-           (2)  A ballot paper shall be invalid on which-                (a)  the figure 1 is not marked; or 693                (b)  the figure 1 is set opposite the name of                     more than  one candidate or is so placed                     as  to   render  it  doubtful  to  which                     candidate it is intended to apply; or                (c)  the figure  1 and some other figures are                     set  opposite   the  name  of  the  same                     candidate; or                (d)  there is  any mark  or writing  by which                     the elector can be identified; or                (e)  there is  any  figure  marked  otherwise                     than with  the article  supplied for the                     purpose :           Provided that  this clause  shall not  apply to  a      postal ballot paper.           Provided further  that where the returning officer      is satisfied  that any  such defect  as is mentioned in      this clause  has been  caused by any mistake or failure      on the  part of a presiding officer or polling officer,      the ballot  paper shall  not be rejected, merely on the      ground of such defect.           Explanation-The figures  referred  to  in  clauses      (a), (b)  and (c) of this sub-rule may be marked in the      international form  of Indian  numerals or in the Roman      form or  in the  form used  in any Indian language, but      shall not be indicated in words."      The Returning  Officer while counting votes at election by Assembly  members has  to bear in mind the implication of voting in accordance with the proportional representation by means of the single transferable vote. What is obligatory in this system  of voting  is that  every elector must exercise his first preference vote. Rule 37A (1) specifies that every

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elector has  one vote  only irrespective  of the  number  of seats  to   be  filled   in  at   such  election.  Rest  are preferences. In order to exercise franchise at such election the elector is under a duty to give his 1st preference vote. Where the  1st preference  vote is  not exercised the ballot paper will  have to  be rejected  as invalid  as mandated by rule 73  (2) (a)  which provides that the ballot paper shall be invalid  on which figure 1 is not marked. By the combined reading of rule 37A (2) (a) 694 with rule  73 (2)  (a) it  unquestionably transpires that in this system  of voting as understood in contradistinction to single member  constituency where  a cross  has to be placed against the  name or  the symbol  of the candidate the first preference vote is a sine qua non for validity of the ballot paper. The provision contained in rule 37A (2) (b) read with rule 73  (2) (a)  and (b)  would manifestly  show  that  the elector is not required to exercise all preference available to him  at the election. To illustrate, if as in the present case  there  were  11  vacancies,  the  elector  can  go  on exercising his  preferences up  to 11th  number  by  putting figures 1  to 11  against the  candidates whom  the  elector wants to accord his preferences according to his own choice. But while  exercising the  preferences it  is obligatory  in order to  render  the  ballot  paper  valid  to  give  first preference vote.  It is optional for the elector to exercise or not  to exercise  his remaining preferences. This must be so in  the very  nature of  things because  this  system  of voting was  devised to  provide minority  representation. If amongst 421  electors as in the present case a party has 220 members owing  allegiance to  the party  and  each  one  can exercise 11  votes with  the reservation  that not more than one vote  can be  given to one candidate and that a cross up to the  totality of  number 11  can  be  placed  against  11 different candidates,  no one  else having  201 votes in his pocket can  get elected.  To avoid this monolithic political pocket  borough  of  votes  this  more  advanced  system  of proportional  representation   by  means   of   the   single transferable  vote   was  devised.   The   very   expression ’proportional representation’  is onomatopoetic in the sense it shows  that various  interests  especially  the  minority groups can  secure  representation  by  this  more  advanced method of  franchise. True,  where there  are single  member constituencies this  system is  not helpful. But where there are multi  member constituencies  this system has a distinct advantage and  the advantage  becomes discernible  from  the fact that  rule 37A  (2) (a)  provides that  an  elector  in giving his vote shall place on his ballot paper the figure 1 in the  space opposite the name of the candidate for whom he wishes to vote in the first instance. The expression ’shall’ demonstrates the  mandate of  the section  and when compared with sub-clause (b) which provides that an elector in giving his vote  may, in  addition, place  in his  ballot paper the figure 2  or the  figures 2,  3, 4  etc which would bring in sharp focuss the mandatory and the directory part in clauses 2 (a)  and 2  (b). The  underlying  thrust  of  the  section becomes further manifest by referring to rule 73 (2) (a) and (b) which  provide that  a ballot  paper shall be invalid on which the 695 figure 1  is not  marked or the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which it is intended to apply. Sub-clause (c) of sub-rule (2) of rule 73 further brings out the intendment of the  provision because  it mandates that the ballot paper

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shall be  invalid on  which the  figure  1  and  some  other figures 1  are set  opposite the name of the same candidate. It, therefore,  necessarily, follows  that when voting is in accordance with  the proportional representation by means of the single  transferable vote  it is  obligatory to cast the first preference  vote for  ensuring  the  validity  of  the ballot paper  and the  first preference vote must be so cast as not  to leave  any one  in doubt  about it. The remaining preferences are optional with the elector. He may or may not exercise his  franchise for the remaining preferences. If he chooses not  to exercise  remaining preferences  the  ballot paper cannot  be rejected as invalid for failure to exercise the remaining  preferences. Rule 73 (2) is exhaustive of the grounds on  which a  ballot paper at a voting at election by Assembly members  shall be rejected as invalid and on a true and in  depth reading  of it, it does not transpire that the failure to  cast the  remaining preferences would invalidate the ballot  paper. This  conclusion  is  reinforced  by  the provision contained  in rule  37A (1)  which  provides  that every elector  has only one vote at an election irrespective of the  number of seats to be filled. Therefore, the vote is only one  and even  if there  is more  than one  seat to  be filled in,  subsequent preferences  may be  indicated by the elector  and  it  is  optional  with  him  not  to  exercise preferences outside  his only one vote which he must cast by indicating unambiguously his first preference.      What then  follows ?  If there is only one vote at such an election  and the  preference are  as many  as there  are seats  chronologically   to  be  indicated  and  failure  to exercise preferences  subsequent to  first preference  would not invalidate  the  ballot  paper,  it  must  follow  as  a corollary that  if the  elector has  committed some error in exercising his  preferences lower  down the ladder the whole of the  ballot paper  cannot  be  rejected  as  invalid.  To illustrate, if  the  elector  has  with  sufficient  clarity exercised his preferences, say 1 to 5 in chronological order but while  exercising his  sixth preference  he  having  the right to  exercise the preference up to 11, has committed an error, the  error, in  exercising his sixth preference would not render the whole ballot paper invalid and his preference up to 696 5 will  have to  be taken  into account  while computing the votes. We specifically invited learned counsel on both sides to assist us in examining this aspect as we were treading on an uncovered  ground. In  fact, we  adjourned the  matter to enable Mr.  Chauhan, learned  counsel for the petitioner and Mr. A.K.  Sen, learned  counsel for  the respondent to study the problem  and at  the resumed hearing it was not only not disputed but  unambiguously conceded  that in  view  of  the provision contained  in rule  37A read with rule 73 (2) once the first preference vote has been clearly and unambiguously exercised the  ballot paper cannot be rejected on the ground that  lower   down  the  ladder  there  was  some  error  in exercising  the  subsequent  preferences.  If  this  is  the correct interpretation  of rule 37A, it must follow that not only such  a ballot  paper has  to be  held as  valid ballot paper but  its validity  shall continue  up to  the stage in preferences where  an error  or confusion  transpires  which would not permit computation of subsequent preferences below the level  of error.  To illustrate  the point, if as in the present case the voter had option to exercise 11 Preferences and if he has exercised his preferences 1 to 5 correctly and unambiguously and has committed an error in exercising sixth preference and it cannot be said with certainty for whom the

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sixth preference  vote was  cast, the ballot paper has to be held valid  in computation  of votes  up to and inclusive of the fifth  preference and  rejected for the preferences down below as  if the  elector  has  not  exercised  his  further preferences which  was optional  with him.  The ballot paper can thus  be  partially  valid.  This  is  not  a  startling proposition but  is the  logical outcome  of the  system  of voting. No  authority is  needed in support of it but one is required it  is to  be found  in the  statement  of  law  in paragraph 636,  page 345,  Vol. 15 of the Halsbury’s Laws of England, 4th Edn. It may be extracted :           "636.   Ballot papers  rejected in part-Where at a      local government  election  or  poll  consequent  on  a      parish or  community meeting  the voter  is entitled to      vote  for   more  than  one  candidate  or  at  a  poll      consequent on  a parish  or community  meeting on  more      than one  question, a  ballot paper is not to be deemed      to be  void for  uncertainty as respects any vote as to      which no  uncertainty arises  and that  vote is  to  be      counted". We have  examined this  aspect in  depth because  out of  11 invalid ballot  papers which we have marked now in the Xerox copies 697 from ’A’  to ’K’ for identification, ballot paper marked ’B’ has been  rejected under  rule 73  (2) (b)  by the Returning Officer on  the ground  that figure  1 appears  against  two candidates J.P. Singh and Surendra Mohan. The High Court has accepted the  rejection as  valid. It is difficult to accept this view  of the  Returning Officer  affirmed by  the  High Court because  figure 1  has been clearly marked against the candidate Surendra  Mohan and the figure 11 is noted against the candidate  J.P. Singh.  There is some overwriting in the two strokes of 11 but it must be remembered that explanation appended to  rule 37A  permits that  the figures  indicating preferences may  be marked  in the  international form of in Indian numerals  or in the Roman form or in the form used in any Indian language but shall not be indicated in words. All other figures  indicating the  preferences have been written in Hindi  numerals and  11 is by two strokes having the loop at the  top slightly  overwritten but  the preference is the 11th preference  against J.P.  Singh, is indisputable and is clearly visible  to the  naked eye.  Obviously  this  ballot paper marked  ’B’ could not have been rejected on the ground mentioned in rule 73 (2) (b).      We may  now  turn  to  remaining  nine  ballot  papers. Remaining nine  ballot papers  have  been  rejected  on  the ground that  by some  mark on  the ballot  paper itself  the voter can  be identified.  There is a specific allegation to that effect  in para  18 of the election petition. Before we examine each individual ballot paper, let the full import of the provision be made clear. Rule 73 (2) (d) provides that a ballot paper  shall be invalid on which there is any mark or writing by  which the  elector can be identified. Section 94 of the  1951 Act  ensures secrecy of ballot and it cannot be infringed because  no  witness  or  other  person  shall  be required to  state for  whom he  has voted  at an  election. Section 94  was interpreted  by this  Court on Raghbir Singh Gill  v.  Gurcharan  Singh  Tohra  &  Ors,(1)  to  confer  a privilege upon the voter not to be compelled to disclose how and for  whom he  voted. To  ensure free  and fair  election which is  pivotal for  setting up a parliamentary democracy, this vital  principle was  enacted in s. 94 to ensure that a voter would  be able  to vote uninhibited by any fear or any undesirable consequence  of disclosure of how he voted. As a

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corollary it  is provided  that if  there  is  any  mark  or writing on the ballot paper which enables the elector 698 to be  identified the  ballot paper  would  be  rejected  as invalid. But  the mark  or writing  must be  such  as  would unerringly lead  to the  identity of  the voter. Any mark or writing of  an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. In Wodward v. Sarsons & Anr.,(1) interpreting an identical provision it was observed as under :           "It is not every writing or every mark besides the      number on the back which is to make the paper void, but      only such  a writing  or mark  as is  one by  which the      voter can be identified". It would  imply that  there must  be some  causal connection between the  mark and the identity of the voter that looking at one  the other becomes revealed. Therefore, the mark or a writing  itself  must  reasonably  give  indication  of  the voter’s identity.  It may  be that  there must  be extrinsic evidence from  which it  can be  inferred that  the mark was placed by the voter by some arrangement. In this context one can  advantageously   refer  to  the  statement  of  law  in Halsbury’s Laws of England.(2) It may be extracted :           "634.  Ballot   papers  rejected   for  marks   of      identification-Any ballot  paper on  which anything  is      written or marked by which the voter can be identified,      except the printed number on the back, is void and must      not be  counted. The  writing or mark must be such that      the voter  can be,  and not  merely might  possibly be,      identified"           "As  respects  ballot  papers  which  have  names,      initials,  figures   or   other   possible   marks   of      identification on  them by  which it might be suggested      that the  voter could  be identified,  it has been said      that the  court should  look at  the paper and from its      own opinion whether what is there has been put there by      the voter  for the  purpose of  indicating for  whom he      votes; if the voter has not voted in the proper way (if      for example he has made two crosses, or some other such      marks which might have been intended 699      for purposes of identification), but the Court comes to      the conclusion  on looking  at the  paper that the real      thing that the voter has been doing is to try, badly or      mistakenly, to  give his  vote, and  make it  clear for      whom  he   voted,  then   these  marks  should  not  be      considered to  be marks  of identification unless there      is positive  evidence of some agreement to show that it      was so". In Woodward’s case the Court came to the conclusion that the placing of  two crosses  or three crosses or a single stroke in line  of a  cross or  a straight  line  or  a  mark  like imperfect letter  ’P’ in  addition  to  the  cross  or  star instead of  a cross  or a  cross blurred  or marked  with  a tremulous hand,  or a  cross placed  on the left side of the ballot paper, or a pencil line drawn through the name of the candidate  not   voted  for,   or  a   ballot   paper   torn longitudinally through the centre, are not marks which would invalidate the  votes on  the ground  that the mark was such that  the  voter  can  be  identified.  Similarly,  Election Tribunal in  Sohan Lal  v. Abinash  Chander &  Ors.,(1) held that addition of a horizontal line after figure 1 indicating first preference vote would not invalidate the ballot paper, unless there was evidence that the horizontal line was drawn

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so as to reveal the identity of the voter. In the absence of any such evidence the ballot paper was held valid. It would, therefore, follow  that the  mark  or  wriring  which  would invalidate the  ballot paper  must be  such as to unerringly point in  the direction  of identity  of the  votor. In  the absence of  such suggested  mark or writing the ballot paper cannot be  rejected merely  because there  is some  mark  or writing on  the ground that by the mark or writing the voter may be  identified. One  has to  bear in mind the difference between  ’can   be  identified’   and  ’might   possibly  be identified’.      The High  Court did  not examine  the  other  9  ballot papers on  the erroneous  view that only two were correlated to the  averments in the plaint. There was specific averment in para  18 of  the petition that the marks were not such as to lead  to identity  of the  elector and  that  the  ballot papers could  not be  rejected as  invalid under rule 73 (2) (d). This  allegation is  wholly substantiated  by a  casual look at  the remaining  nine ballot  papers.  The  error  is apparent. Once  the error  has been established the scrutiny and 700 recount had  to be ordered as a prima facie case of miscount is made  out and,  therefore, the decision of the High Court is liable  to be set aside. At one stage we were inclined to examine the  validity of  each ballot paper. But as the High Court has  not undertaken  that exercise  it  would  not  be proper for us to undertake the same for the first time here. The position  of law  having been  made very  clear, namely, that once  an error  is established it is not necessary that the pleadings  must show error in respect of each individual invalid  ballot  paper,  and  prima  facie  proof  of  error resulting in  miscount having  been established,  a scrutiny and recount  has to  be ordered. And the scrutiny of invalid ballot papers  must precede  the recount. It is further made clear  that   where  voting   is  in   accordance  with  the proportional representation  by the single transferable vote a ballot  paper can  be  valid  in  part.  And  it  must  be remembered that  every mark  or writing  does not  result in invalidation of  the vote  The mark or identification should be such  as to  unerringly reveal  the identity of the voter and the  evidence of  prior arrangement  connecting the mark must  be   made  available.   There  is  no  such  evidence. Therefore, the ballot papers could not have been rejected on the ground mentioned in rule 73 (2) (d), such marks being in this case some erasures or a bracket.      Free and  fair election  being the  fountain source  of Parliamentary democracy attempt of the Returning Officer and the Court  should  be  not  to  chart  the  easy  course  of rejecting ballot  papers  as  invalid  under  the  slightest pretext but  serious attempt should be made before rejecting ballot papers  as invalid to ascertain, if possible, whether the elector  has  cast  his  vote  with  sufficient  clarity revealing his intendment. In this case we are satisfied that the  Returning   Officer  has   charted   an   easy   course unsupportable by  evidence and  the  High  Court  failed  to exercise its  jurisdiction of  scrutiny of all ballot papers once a  serious error has been pointed out in respect of two ballot papers  out of  a total  of 11 invalid ballet papers. Therefore, we  find it difficult to accept the view taken by the High  Court. Accordingly, this appeal is allowed and the judgment and  order of  the High Court are set aside and the matter is  remanded to the High Court for further proceeding according to  law. The  High Court shall examine all invalid ballot papers,  ascertain the  reasons  for  the  rejection,

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satisfy itself  whether the reason is valid or unconvincing, and decide the validity of the ballot paper as a whole or in part and  direct computation  of the  votes over  again. The High Court  may bear  in  mind  that  the  decision  of  the Returning 701 Officer rejecting  ballot papers  as invalid  is subject  to review of  the High Court in a proper election petition (See Halsbury’s Laws of England, para 638, page 345, Vol. 15, 4th Edn.).      It would  be open  to the High Court to take assistance of the  Chief Electoral  Officer or  such other  person well versed in  computing the votes in this complicated system of counting as  considered necessary  to  determine  the  final outcome of recount.      As the  matter has  been delayed  sufficiently, we hope that the High Court would expeditiously dispose of the same. The costs of the hearing in this Court would abide the final outcome of the appeal. S.R.                                         Appeal allowed. 702