# SHRADHA DEVI v. KRISHNA CHANDRA PANT & OTHERS

- **Citation:** [1983] 1 S.C.R. 681
- **Court:** Supreme Court of India
- **Decided:** 1982-10-26
- **Bench:** D.A. Desai, A.P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shradha-devi-v-krishna-chandra-pant-others-8590
- **Pages:** 21

## Headnote

Representation of the People Act, 1951-E/eciiOn Petition-Elector's dutyNature ofproof--Required for a relief ofsCrutiny and recount on the a/legation
of miscount in an election 'petition.
A
B
c
The appellant was one-of the 19 candidates for the 11 members to be elected
at the biennial election for electing members to ,Council of States from the
!I"'! consti1uency of el~cted m~mbers of the Uttar Prad"'sh Legislative Assembly, at
the election held on 28th March, 1979.
D '
, The election was to be in accOrdance with the ·sYstem of proportional
representation by means of single trans_fcrable ~ote. Io all 421 members exercised
their franchise. Eleven ballot papers were rejected by tbe returning officer as
inValid and the 1st Respondent was declared elected in tbe'14th count.
The appellant, thereupon, filed an election petition Under section 81 of the
.J.951 Act before the Lucknow Bench· of the Allahabad High Cou'rt for Scrutiny
and ·recount· on the allegation of miscount. The appellant alleged that (i) ~he
result of the election in so far as it co~cerns the returned candidate {i.e.)~ .Jst
. respondent-has been materially affected by the improper rejectiori of valid votes·
by wrongly declaring them invalid as weIJ as by improper reception of what other~
wise would haVe been the invalid vote's if the Return-i,ng Officer had been consitent
in his approach, and, therefore, the election of the returned candidate not only
shquld be declared void but in bis· place bf a proper computation oi'votes, the
.petitioner sho1,dd be. declared elected to·the 1 I th vacancy, (ii) there had been an
:in1prOper rejection of the valid votes cast in her favour and that 'has materially
;affe~ted the result.of the election; and (iii) even though it was obligatory upon
:the Returning Offic.er to sho'w all the ballot papers 'Yhich be rejected as invalid,
to the candidates and/or their counting agents, he· only showed four out of the
eleven ballot papers heJd invaiid by him and did not show the rest of .them.
Even these four were wrongly rejected and cannot be said to •be covered. by
.Rule 73(2)(d) of the Election Rules.
The High Court dismissed the election
petition and hence the appeal by special le~ve.
F
The appellant contended that {i) where the election is to be held in accorH'
dance with. the system of .Proportiopal .representation by means of the single
transferable vote, if the μrst preference is properlr ~pg w;cerlainably cast any
682
SUPREME COURT REPORTS
(1983] 1 S.C.R,
A
error in setting oUt the reinaining preferences would not enable the Returning
Officer to reject the whole ballot paper;· and (ii) every unrequired mark, cutling,
erasure cannot tantamount to any indication which would enable the voter to be
identified but the writing or mark roust De such that the veter can be and not
merely might be identified and there is no such cutting mark or erasure within
the meaning of Rule 73(2)(d) of the Conduct of Election Rules; 1961.
8
c
D
E
F
G
H
Allowing the appeal, the Court
HELD: 1:1. When a petition is for relief of scrutiny and recount on the
allegation of miscoutit, the petitioner has to offer prima facie proof of errors in
counting and if errors in counting. arc prima facie established, a recount can be
ordered. If the allegation. is of improper rejection of valid votes which is
covere.d by the broad spectrum of scrutiny and recount because of miscount,
petitioner must furnish prima facie proof of such error. If proof is furnished
of some Crrors in respect of ~ome b81lot papers·, scrutiny and recount cannot
. be limited to those ballot papers only. If the recount is limited to those ba11ot
papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituehcy where rnore often_l0,()00 or more vo1es a1e re.ltcted as invalid. [690 A-C]
1 :2. Law does not require that while giving proof of prima facie error
in counting each head of error must be tested

## Text

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.,
681
SHRADHA DEVI
v.
KRISHNA CHANDRA PANT & OTHERS
October 26, 1982
[D.A. DESAI. AND A.P. SEN, JJ.]
Representation of the People Act, 1951-E/eciiOn Petition-Elector's dutyNature ofproof--Required for a relief ofsCrutiny and recount on the a/legation
of miscount in an election 'petition.
A
B
c
The appellant was one-of the 19 candidates for the 11 members to be elected
at the biennial election for electing members to ,Council of States from the
!I"'! consti1uency of el~cted m~mbers of the Uttar Prad"'sh Legislative Assembly, at
the election held on 28th March, 1979.
D '
, The election was to be in accOrdance with the ·sYstem of proportional
representation by means of single trans_fcrable ~ote. Io all 421 members exercised
their franchise. Eleven ballot papers were rejected by tbe returning officer as
inValid and the 1st Respondent was declared elected in tbe'14th count.
The appellant, thereupon, filed an election petition Under section 81 of the
.J.951 Act before the Lucknow Bench· of the Allahabad High Cou'rt for Scrutiny
and ·recount· on the allegation of miscount. The appellant alleged that (i) ~he
result of the election in so far as it co~cerns the returned candidate {i.e.)~ .Jst
. respondent-has been materially affected by the improper rejectiori of valid votes·
by wrongly declaring them invalid as weIJ as by improper reception of what other~
wise would haVe been the invalid vote's if the Return-i,ng Officer had been consitent
in his approach, and, therefore, the election of the returned candidate not only
shquld be declared void but in bis· place bf a proper computation oi'votes, the
.petitioner sho1,dd be. declared elected to·the 1 I th vacancy, (ii) there had been an
:in1prOper rejection of the valid votes cast in her favour and that 'has materially
;affe~ted the result.of the election; and (iii) even though it was obligatory upon
:the Returning Offic.er to sho'w all the ballot papers 'Yhich be rejected as invalid,
to the candidates and/or their counting agents, he· only showed four out of the
eleven ballot papers heJd invaiid by him and did not show the rest of .them.
Even these four were wrongly rejected and cannot be said to •be covered. by
.Rule 73(2)(d) of the Election Rules.
The High Court dismissed the election
petition and hence the appeal by special le~ve.
F
The appellant contended that {i) where the election is to be held in accorH'
dance with. the system of .Proportiopal .representation by means of the single
transferable vote, if the μrst preference is properlr ~pg w;cerlainably cast any
682
SUPREME COURT REPORTS
(1983] 1 S.C.R,
A
error in setting oUt the reinaining preferences would not enable the Returning
Officer to reject the whole ballot paper;· and (ii) every unrequired mark, cutling,
erasure cannot tantamount to any indication which would enable the voter to be
identified but the writing or mark roust De such that the veter can be and not
merely might be identified and there is no such cutting mark or erasure within
the meaning of Rule 73(2)(d) of the Conduct of Election Rules; 1961.
8
c
D
E
F
G
H
Allowing the appeal, the Court
HELD: 1:1. When a petition is for relief of scrutiny and recount on the
allegation of miscoutit, the petitioner has to offer prima facie proof of errors in
counting and if errors in counting. arc prima facie established, a recount can be
ordered. If the allegation. is of improper rejection of valid votes which is
covere.d by the broad spectrum of scrutiny and recount because of miscount,
petitioner must furnish prima facie proof of such error. If proof is furnished
of some Crrors in respect of ~ome b81lot papers·, scrutiny and recount cannot
. be limited to those ballot papers only. If the recount is limited to those ba11ot
papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituehcy where rnore often_l0,()00 or more vo1es a1e re.ltcted as invalid. [690 A-C]
1 :2. Law does not require that while giving proof of prima facie error
in counting each head of error must be tested by only sample examination of
some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. This is not the area of inquiry
in a
0
petition for relief of recount on the J?,round of n1iscount. True it is that
'a recount is not granted as of ·right, but on evidence of good grounds for
believing that there has been a mistake on the part of_. Returning Officer.
Prima
facie proof or errOr complained of must be given by the election petitioner and
it'must further be shown that the errors a!e of such q:iagnitude that the result
of the election so far as it affects the returned candidate is materi31ly affected,
then recount is directed. [6_90 C·E]
1:3, It is not the requirement of law that in respect of each baJJot paper
rejected as invalid a specific averment must be so mar'e as to identify the ballot
paper and the only those that can.be correlated to the allegations in the petition
specifically and not generally shiill be recounted.
Tbat is ·contrary to the
requirement of the Act and the ,Ruies. [6?1 B-C]
.
2:1. A combined reading of Rules 37A(I), 73(2)(a) and 73(2)(b) of the
conduct of Election Rules 1961, makes clear that when voting is in accordance
with the
praportional representation by
means of the single transferable
vote it is obligatory to cast" the first preference vote fcir ensuring the
validity of the ballot paper and the first preferenee vote must be so cast
as not to leave any one in doubt about it. The remaining
preferences are
optional with the elector. He may or may not exercise his franchise for the
remaining preferences, Rule 73(2) is exhaustive of the grounds on which a
ballot paper at a votir.g at election by Assembly members shall be rejected as
invalid and on a true and indepth r~adin~ of it, it· does· nl)t transpire that the
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SHRADHA DEVI v. K.C. PAN1'
683
failure to cast the remaining preferences wou1d invalidate the ballot papers.
This. is so because under rule 37A(l) every elector has· only one vote at an
election irrespective of the Dumber of seats io be filled. The vote is only one
and even if there is more than one seat to be filled in, subseqtient preferences
may be indicated -by the elector and it is optional with him not to exercise
preferences outside his only one vote which he must cast by indicating
unambiguously bis first preference. [695 D-G]
2:2. If there is only .. one vote at such an election and the preferences are
as many as there are seats chronologically to be indicated and failure to exercise
preferences subsequent ~o first preference would not invalidate the ballot paper,
it must fo!Jow as a corotlary that if the elector has ~ommitted some error in
exercising his preferences lower down the ladder .the whole of the ballot paper
cannot be rejected as invalid. Thei'efore, it must follow that not only such a
ballot paper has to be -held as valid baUot paper but its validity shall continue
upto the stage iO preferences where an error or confusion transpires which would
not perlnit computation of subsequent prCferences .below the level of error. To
illustrate the point~ if as in the present case the voter had option to exercise
11 preferences atid if he has exercised his prefereQces 1 to S correctly and
unambiguously and has eommitted an error in exercising sixth preference and
it cannot be said with certainty for whom the sixth preferences vote was cast,
the ballot paper has to be held valid in computation of votes upto and'
inclusive of the fifth preference and ·rejected for the preferences down below as if
the elector has not exercised his further preferences which wlls opt.ional with
him. The ballot paper can thus be partially valid ·and this is the logical out~
-. come of the system of voting. [695. F-H, 696 A-C-EJ
3:1. Free and fair election being tbe fountain source of Parliamentary
de~ocracy attempt of the Returning Officer and the Court should be not to
chart the easy course of rejecting ballot papers "as invalid under the slightest
pretext but serious attempt should be made before rejccti~g ballot papers as
invalid to ascertain, if possible, whether the elector has cast his vote with
sufficient cl8rity revealing his intendment. In this cil.se, the Returning Officer
has charted an easy course unsupportable by evidence and the High Court
failed to exercise its jurisdiction of scrutiny of all ballot papers Once a serious
error has been pointed out in respect of two ballot papers out of a total of 11 ·
invalid ballot papers. [700 E-GJ
3:2. Rule 73(2)(d), provides that a ballot paper shall be inValid on wbich,
there iS: any m"ark or writing by .which the elector can be identified. Section 94
of the Representation of People Act, 1951 ensures secrecy of ballOt and it
cannOt be infringed because ~o witness or ot!Jer p6rson shaH be required to
state for whom he has voted' at an election. To ensure free and fair election
w.hich is piv<;>tal for setting up a parliamentary democracy, this vital principle
was enacted in s: 94 to ensure that a voter would be able to vote uninhibited
by any fear or any undesirable consequence of disclosure of bow he voted. As
a corollary it is provided !hat if there is any mark or writing on the ·baUot
paper whicb. enables the
~l~i;:h?r t<? ~ ~<!~r:Hified the ba1lot paper would be·
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684
SUPREME COURT REPORTS
(1983] l S.C.R.
rejected as invalid. But the mark or writing must be such as would unerringly
lead to the identity of the voter. Any m:irk or writing of an innocuous nature
or meaningless import cannot be raised to the levei 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-DJ
Raghublr Singh Gill v. Gurcharan Singh Tohra & Others, [1980] 3 S.C.R.
i302; followed.
Woodward v. Sarsons & Another, [1874-75) 10 L.R. (CP) 733, ·quoted with
approval.
·
3:3. The words. "cati be identified" in Rule 73(2)(d) cannot be interpreted
to mean "might possibly be identified". The mark or writing Whicti would
invalidate 1he ballot paper must be sucq. as ,to unerringly point iil the direction
of identity of the voter. In the absence of suggested tnark 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. ,.4binash Chander & Others, L1953] 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 et_ror is apparent; ·Once the error has been established the
scrutiny and recount had to be ordered as a Primafacie case or miscount is.
ma.tie out and. therefore, the decision of the High Court is liable to be set
aside, (ii) As the High Coutt has not undertaken to examine the validity of
each ballot paper it would not be proper- for the Su.preme Court to undertake
the same for the first titne here; (iii) tbe 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 pap~r. and
a prima facie pr6of of error. resulting in miscount having been established a
scrutiny and recount bas to be ordered. And the serutiny of invalid ballot
papers must precede the recount; and (iv) there is no eviderlce or any prior
arrafigement between candidate and the voter regarding identity and· fv) the
ballot papers could not have_ been rejected on the ground mentioned in rule
73(2)(d), such marks, beibg in this case, somP. erasures or a bracket.
[699 F·H; 700 A-A)
CIVIi. APPELLATE
JURISDICTION : Civil Appeal No. 277 of
1980,
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SHilADHA DEVI v. K.c. PANT (Desai, J.)
685
·(From the Judgment and Order dated the I Ith 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 fot
the Appellant.
A.N. Sen and C.P. Lal for Respondent No. I.
S.S. Khanduja for RR. ~ & 5.
Miss Karnlesh Bansal for Respondent No. 16.
B
· The Judgment of the Court was delivered by
C
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DESAI, J. An unsuccessful candidate fo~ electfon 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
D
and. the !st respondent Were duly nominated as candidates. II
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 closod according to the ·time
prescribed by the Election Commission under s. 56 of the RepresenE
talion cif the People Act, 1951 ('1951 Act' for short), t~e Returning
Officer, PW. 4 Satya Priya Singh commenced counting bf 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 Oinduct of Electi~n
Rules, 1961 ('Rules' for short), proceeded to ascertain the quota. In
F ·
all 421 members exercised the franc'his~. Eleven ballot. paperi were
rejected by the Returning Officer as invalid. Accordingly the quota
was worked out at the· value o.f 3417. Respondenfs 2 to 11 were
declared elect'd as each of them s~cured the value of ballot papers
greater than the quota in the course of counting. As the counting
. G
proceeded further, the contest was between the election petitioner
.(appellant) and the !st respondent and the !st respondent was
declared elected in the 14th count. Once all the 11 vacancies were
fiil~d 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
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686
SUPREME COURT REPORTS
(1983] 1 s.c.R.
petition was for scrutiny and recount on the allegation of miscount
and directed against the Isl respondent because he was declared
elected to the last vacancy.
Petitioner alleged that the result of the election in so far as it
c~ncerns 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,
therefo~e. 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 I 1th 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 Jst 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 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 identi_fy 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 other·
wise valid necessitating scrutiny and recount are set out in paras
14, 15, 17 and 18 of th_e 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
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SHRADHA DEVI v. k.c. PANT (Desai, J.)
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687
third allegation is to the effect that the ballot paper containing a !st
preference vote cast in favou.r of the candidate Shri Su
0
rendra Mohan'
was illegally rejected by the Returning Officer on ·the ground that
the voter had given his !st preference vote· at two places whereas in
fact the voter·had given his !st preference vote only to Shri Surendra
·Mohan and had given I Ith 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
bearing 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
bailot 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 !st respondent contested the petition, inter alia, contending
that the quota was not 34 i'7 as contended for on behalf of the
petitioner but it was 32'17 and that ·respondents 2 to II received
more than quota h.ence they were declared elected and that the
contest continued between him ~and the petitioner and in the 14th
count the I st 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 were not
shown to the counting agents and contended that no error in
counting is shown and that it is not open to.the cour.t to direct recount
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by first examining the ballot papers rejected as invalid. Some techni-
' ~al 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 giyen to the petitioner. The Court directed inspection of four ·
ballot papers to be given as per order dated May 2, 1979. The !st
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
.
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learned counsel appearing for the petitioner was not inclined to take
inspection in t(Jis truncated manner and disclosed his desire to move
tbis Co~rt against the order gra~ting 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 appe_ars, 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 1he
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 ba1lot 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 inspecti~n. Ultimately he
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SHRADHA DEVI v. tc.c. PANT (Desai, J) '
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689
took recourse . to th.e 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 correl~teci to the
allegations made in the petitfon 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 th~
envelope in the presence of the learned coun_sel 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 unsuceessful
candidate, ihe petitioner, . nor the I st respondent, the returned
candidate, stepped into the witness box. On behalf of the petitioner
PW. 1 Shri Shakir Ali Siddiqi, PW. 2 Udit Narain Sharma, election
agent of candidate Shri Surendra Mohan, and PW. 3 Kalpnath Singh
election agent of . the petitioner were examined. RW. 1 Habibul
Rahma~.Nomani, counting· ·agent of Smt. Manohara, RW. 2 Deo
Bahadur Singh, election agent
of the returned candidate !st
respondent, RW. 3 Prabhat Kumar Misra, observer deputed by the
Election Commission and. RW. 4 Satya Priya. Singh, Returning
Officer were examined on °behalf of the returned candidate.
·
The learned Judge rejected the petition substantially holding
th.at the petitioner has failed to prove that all eleven rejected ballot
papets·were not shown to the counting agel\ts. It was held that
petitioner failed to prove such error in counting which would enable
her to seek relief of scrutiny' and recount. In reaching this conclusion,
with great respect, the learned judge has completely misqireted
himself as to the nature of proof ~equired for a relief of scrutiny and
recount on the allegation of miscount. The learned Judge first to~k
up the allegations of ~rrors in.counting, more particularly directed io
the allegation of improper rejection of valid votes which would
materially affect the result as set out in paras 14, 15, 17 and 18 of
the petition, and then through the help of the Joint Registrar
excluded the nine ballot papers without giving inspection and ·only
\
.
,
'
took into consideration two ballot papers which answered the error
as complained of and then proceeded to hold that even if these two
ballot papers rejected as invali<i are taken into account and the value
of the votes computed, the result ·would not be materially affected
and, therefore, rejected the election petition.
A
B
c
E
F
G
H
A
B
c
D
F'
G
H
690
SUPREME COURT REPORTS
(1983] I 9.C.R.
When a petition is for relief of scrutiny and recount on the
allegation of miscount, the petitioner has to offer prima facie .proof
of errnrs 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
primafacie proof of such error. If proof is ftirnished 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 1 miscount. True it is
that 'a recount is not granted as of right, but on evidence of good
grounds for believing that there bas been a mistake on the part of
, Returning Officer' (See Halsbury's Laws of Eng1and, 4th Edn., Vol.
15, para 940). This Court bas 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 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 vole is validly cast some error is committed in indicating
'
the remaining preferences. Instances of error is commited 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 n6t, 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 bas 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,
.. .
l ,
••
;,
SHRADHA DEVI v. ICC. PANT (Desai, J.)
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 pointe\J 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
repr~sentation 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 Co11stituencies'. 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 issned under clause (a) of rule 68, subject to. ihe 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 :
A
B
c
D
E
F
G
"37A. Method of voting-(!) Every elector has only
H
one vote at an election irrespective of the number of seats
to be filled.
A
B
c
D
E
F
G
692
StJPllEMB cOUR'I: REPOlltS
[1983J I s.c.!l:
(2)
An elector in giving his ~ote-
(a) shall place on his ballot paper the
figure I in the space' opposite the n&me
of the candidate for 'whom he wishes to
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 iu
words".
Part VII is headed 'Counting of votes' at Elections
by
Assembly Members or in Council Gonstituencies'. It defines expressi()ns such aa 'continuing candidate' 'count', 'exhausted paper'· 'first
preference', original vote', surplus' transferred vote' and 'unexhaused
paper'. These are techanical terms each having' bearing on the
question of countiμg of votes. 'First preference' vote has been
defined to mean t~e figure I set opposite tμe a name of a candidate;
'second preference' means the figure 2 set opposite the name of a
candidl!te: '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 p~per on
which a first preference is recorded, for such candidate. Rule 73 provides for ,scrutiny and opening of ballot boxes and packets of postal
baiiot papers. Sub-rule (2) of rule 73 is material whi~h may be
cxtr~cted:
"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 I is not marked; or
_)
fSRRADHA DEVI v. K.c. PANT (Desai, J.)
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 I and some other figures -are set
A
opposite the name of the same candidate; or
B
(d) there is any mark or writing by which the
elector can he 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 satified 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 iii Clauses (a),
(b) and (c) of this sub-rule inay be marked in the international form of Indian numerals or in the Roman form
or in the form used in any Indian language, but shilli not
be indicated in words."
·
/
The Returning Officer while counting votes . at eleciion 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 37 A (J) specifies that every 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 I st preference
vote. Where the !st 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 I is not mar!!:ed. :Sy the combined reading of rul~ 37 A (2) (al
c
D
E
F
G
H
A
B
c
D
E
F
G
H
694
SUPREME COIJRT REl'ORTS
(198311 s.c.R.
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
. fot validity of the ballot paper .. The
provision contained in
rule 37A (2) (b) read with rule 13 (2) (a) alid (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 I Ith number b¥ putting figures I to I I against 1 the
candidates whom the elector wants to accord his preferences
according to his own choice. Bui' 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 represent'ation. If amongst 421 electors as in the
present case a party has 220 members owing allegiance to the party
and each one can exercise II 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
elei:ted. To avoid this monolithic political pocketborough of votes
this more advanced system of proportional' representation by means
of the single transferable vote was devised. The very expression
'proportiona.I representation' is onomatopoetic in the sense it shows
that yarious interests especially the minority g'roups can secure
representation by this more advanced metlJod of franchise. True,
where there are single member constituencies this system is not
helpful.
But where there are multi member constituencies this
system bas a distinct advantage and the advantage becomes discernible from the fact that rule 37A (2) (a) provides that an elector in
giving bis .vote !ball place on his ballot paper the figure I in ihe
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 sect\pn 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
.• r
SHRADHA DEVI v. K.c. PANT (Desai, J.)
695
'
'
figure l is not marked or the figure 1 is set oppo~ite 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 shall be invalid on which the figure I
A
and some
other
figures
I are set
opposite
the name of
B
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 ihe 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
C
elector. He may or may not exerchise his franchise
for the
remaining preferences. If- he chooses n~t 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
D
true and indepth reading of it, it does not transpire that the faliureto cast the remaining preferences would invalidate the ballot paper.
This conclusion is reinforced by the provision" contained in
rule 37 A (I) which provides that every elector has only one vote at
an election irrespective of the number of seats to be filled. There·
fore, the vote is only one and even if there is more than one seat
E
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 unambiguosly
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 firs.t preference would not invalidate the ballot pa per, it must
follow as a corollary that if.the elector has committed some errodn
exercising bis preferences lower down the ladder the whole of the
ballot paper cannot be rejected as invalid.