THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR
Writ Petition Nos.14303 of 2014
16-2-2015
B.Harshavardhan Reddy Petitioner
Election Commission of India Represented by its Principal Secretary Nirvachan
Sadhan, Ashoka Road New Delhi 110 001 and others Respondents
COUNSEL FOR PETITIONER : Sri M.S. Prasad, Senior Counsel
for Sri M. Anish Sathya Kamal
COUNSEL FOR RESPONDENT NO.1: Sri Avinash Desai
COUNSEL FOR RESPONDENT NOs.2 & 3 :Sri V.V. Prabhakar Rao
<GIST:
>HEAD NOTE:
? CITATIONS: 1. (1999) 4 SCC 526
2. (2012) 4 SCC 194
3. 25 ELR 61 (All)
4. AIR 1952 SC 64
5. AIR 1959 SC 233
6. (2000) 8 SCC 216
7. (1978) 1 SCC 405
8. (2004) 7 SCC 492
9. 2009 (3) ALD 822
10. AIR 1999 SC 1723
11. (2012) 4 SCC 194
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.14303, 14305 & 24287 of 2014
Dated:16.02.2015
In W.P.No.14303 of 2014:
B. Harshavardhan Reddy Petitioner
Vs.
1. Election Commission of India, rep. by its Secretary,
Nirvachan Sadan, Ashoka Road, New Delhi-110001,
and two others. . Respondents
In W.P.No.14305 of 2014:
Janga Vinod Kumar Reddy Petitioner
Vs.
1. Election Commission of India, rep. by its Secretary,
Nirvachan Sadan, Ashoka Road, New Delhi-110001,
and two others. . Respondents
In W.P.No.24287 of 2014:
Yuvajana Sramika Rythu Congress Party,
Road No.35, Jubilee Hills, Hyderabad. Petitioner
Vs.
1. Election Commission of India, rep. by its Secretary,
Nirvachan Sadan, Ashoka Road, New Delhi-110001,
and another. . Respondents
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.14303, 14305 & 24287 of 2014
COMMON ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
In terms of the order dated 25.9.2014 all the aforesaid three
matters were heard analogously since the core issue involved
therein is almost identically same.
2. The first writ petition (W.P.No.14303 of 2014) was filed
on 29.4.2014 to challenge the decision of the 1st respondent
Election Commission of India, dated 26.4.2014. The above
mentioned second writ petition (W.P.No.14305 of 2014) was filed on
29.4.2014 to challenge the stand taken by 1st respondent in the
letter dated 28.4.2014. Thereafter third writ petition (W.P. No.
24287 of 2014) was filed on 21.8.2014 seeking direction upon the
1st respondent to conduct by-election of Allagadda Assembly
Constituency No.253 of Allagadda, Kurnool District in the State of
Andhra Pradesh as the seat of the aforesaid Assembly Constituency
has not been filled up and lying vacant.
3. The facts in all the writ petitions are summarized
hereunder:
The 1st respondent announced election for all the seats
of the Legislative Assembly of the then State of Andhra Pradesh
scheduling 19.4.2014 for receiving nominations from the
candidates seeking to contest election; 21.04.2014 for scrutiny of
nominations; and 23.4.2014 as the last date of withdrawal of
nominations. One Smt. Bhuma Shoba Nagi Reddy since deceased
(hereinafter referred to as deceased) filed her nomination being
fielded by Yuvajana Sramika Rythu Congress Party (hereinafter
referred to as YSR Congress Party), an unrecognized political party
registered with the 1st respondent to contest election in Allagadda
Assembly segment. However, the said deceased died in a road
accident on 24.04.2014 at about 11.00 a.m. without withdrawing
her nomination on or before 23rd April, 2014. Since YSR Congress
Party is unrecognized registered political party, election cannot be
adjourned under the present provisions of Section 52 of the
Representation of the People Act, 1951 (hereinafter referred to as
the said Act) on account of death as above. At the same time,
election ought not to have been allowed to be held with the dead
candidate and the name of the deceased should have been deleted
from the list of contesting parties as from the date of death and to
that of poll there was a clear gap of 14 days.
4. The object of Election Law in Indian Democracy is to
choose the living candidate, not the dead one. Therefore, the
direction given by the 1st respondent in Communication dated
26.4.2014 to proceed with the election process with the name of
dead candidate in the list of contesting candidates in Form-7A is
unconstitutional, illegal and contrary to the provisions of the
said Act.
5. As per the aforesaid time schedule, election was duly
held and the votes were received basing on the list of contesting
candidates as per the decision of the 1st respondent as stated
hereinabove. On counting of votes, it was found that the said
deceased was declared elected.
6. Now in the second writ petition (W.P.No.14305 of 2014)
it has been alleged amongst others that the declaration of result of
the election taking into account of the votes polled in favour of the
deceased candidate is wholly illegal as votes polled in the name of
the dead candidate cannot be said to be valid ones, therefore
decision of 1st respondent to that effect under Rule 64 of the
Conduct of Election Rules, 1961 (hereinafter referred to as the said
Rules) is undemocratic and encouraging the voters to vote for a
deceased candidate. As the elected candidate was found to be
dead, the said Assembly seat could not be filled up, consequently
declared to be vacant one, decision taken by letter dated 28.4.2014
by the 1st respondent to hold by-election does not find support of
law. It was therefore urged that votes received by the deceased
should be declared invalid and be rejected, votes received by the
living candidates be counted and result accordingly be declared.
In spite of such decision, no by-election was held and as such the
third writ petition (W.P.No.24287 of 2014) was filed for the direction
of holding bye-election.
7. Counter-affidavits have been filed by the respondents
taking common stand that at the time of filing nomination of the
deceased candidate was found to be valid and it was accepted upon
scrutiny. Since this nomination was not withdrawn on the last
date, it had to be accepted and published under law. On
intimation of death thereafter, law does not enable the respondent
to delete the name of deceased candidate from ballot paper or from
Electronic Voting Machine. On the contrary, on reading legal
provision it would be plain that ballot paper and EVM with the
name of the deceased candidate has to be maintained after
publication under Section 38 of the Act for casting votes. If any
deletion is made on any ground thereafter, in absence of legal
provision as such, it will lead to encouragement of rampant
manipulation. Indisputably, the deceased candidate was fielded by
registered, but unrecognized, political party, so the question of
postponing election under Section 52 of the Act did not and could
not arise. Once the election is held and votes are allowed to be
cast, declaration of result is automatic legal process. It is the
choice of the electors how and to whom they will cast their votes.
The Act and the Rules framed thereunder provides for procedure for
scrutiny for declaring the invalid and valid votes. Observing all the
laws, it was found that the deceased candidate secured highest
number of votes as such she was declared elected. Since she could
not be found for filling up the seat despite being elected the said
seat has to be declared as casually vacant, as such by-election
under Sections 150 & 151 of the said Act is inevitable course of
action. In the counter, it is also stated that in view of Article 329
of the Constitution of India first two writ petitions are not
maintainable as they involve election disputes, a separate and
special tribunal has to be approached for resolution thereof. The
first two writ petitions are liable to be dismissed.
8. Sri M.S. Prasad, the learned Senior counsel for the
petitioner in one of the writ petitions contends that -
(a) The Constitution of India particularly Article 173 does not
permit the election of dead person as M.L.A.
(b) Section 5 of the Representation of the People Act, 1951, Rule
2 (d) and Rule 64 read with Rule 66 of Conduct of Election
Rules, 1961 if read harmoniously and purposively, will not
permit a candidate who died much before the polling be
declared elected as a returned candidate/elected candidate.
(c) The prohibition under Article 329 for entertaining writ
petition under Article 226 is not absolute and the issues
raised in this writ petition can be adjudicated by this Honble
Court under Article 226 of the Constitution of India and it
does not question election, rather decision for holding fresh
election is questioned.
(d) As a matter of fact, the 2nd respondent has announced on
24th and 25th of April, 2014 that if votes are polled in favour
of dead person the same are invalid. This averment has not
been denied by the 2nd respondent Authority or by any
person.
(e) The 1st respondent failed to produce record to show who
passed the impugned order and what was the basis for the
same and also failed to produce the letter alleged to have
been written by one Mr. Krishna Mohan Reddy which was
the basis for the impugned order. This conduct throws
doubt on the bona fides of 1st respondent and/or on the
Principal Secretary who issued the impugned order without
jurisdiction.
(f) A survey of all the judgments of this Honble Court, other
Honble High Courts and the Honble Supreme Court has
shown that no Court has so far ever held that a dead person
can be declared elected when such person died long before
the actual polling day and/or the votes polled in favour of
dead person can be treated as valid ones in terms of
Representation of the People Act, 1951 and Conduct of
Election Rules, 1961 and under the provisions of
Constitution of India.
9. In support of his submissions, he placed reliance on the
following judgments:
(i) A.V. Venkateswaran Vs. R.S. Wadhwani - AIR 1961 SC 1506
(ii) Hassan Uzzaman Vs. Union of India - (1982) 2 SCC 218
(iii) Madan Gopal Vs. Nek Ram Sharma - 25 ELR 61 (DB) (All)
(iv) K. Venkatachalam Vs. A. Swamickan - (1999) 4 SCC 526
10. The learned counsel for the respondent Nos. 1& 2
contends that writ petition is not maintainable as the same relates
to election and it is barred under Article 329 of the Constitution of
India. He, on the other hand, submits that after finalization and
publication of list of the contesting candidates under the law,
names chosen have to be placed in the ballot paper or electronic
voting machine. Hence, writ petition is liable to be dismissed.
11. After hearing the learned counsel for the parties and
taking note of the fact, issues required to be decided in these
matters are as follows:
(i) Whether on the facts and circumstances of the case on
receipt of intimation of death of one of contesting candidate,
his/her name should have been deleted from the list of
contesting parties after publication thereof under Section 38
of the Act?
(ii) Whether the votes polled in favour of the deceased candidate
should be declared invalid and consequently the results
should be re-declared taking into consideration the votes
polled in favour of living contesting candidates?
12. Before deciding the aforesaid issues, it is incumbent on
us to decide the preliminary objection raised by the respondents
namely maintainability of the writ petition.
13. With regard to maintainability, it is to be examined
looking at the prayers, attendant fact pleaded and that of
subsequent development provision of Article 329 operates as bar or
not. We appropriately set out Article 329 of the Constitution of
India.
329. Bar to interference by courts in electoral matters.
Notwithstanding anything in this Constitution
(a) the validity of any law relating to the delimitation of
constituencies, or the allotment of seats to such constituencies,
made or purporting to be made under article 327 or article 328,
shall not be called in any question in any court,
(b) no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be called in
question except by an election petition presented to such
authority and in such manner as may be provided for by or
under any law made by the appropriate Legislature.
14. According to us, on plain reading of this Article in its
present form brought about by amendment of Constitution (39th
Amendment) Act, 1975, it takes away power of all Courts including
this Court in respect of subjects mentioned in clause (a) herein
above. In other words, subjects mentioned therein are not
justiciable at all. Of course, we are not expressing any opinion
whether amendment of this portion hits the basic structure of the
Constitution with regard to power of High Court under Article 226
and 227 of the Constitution, since it is not issue here. It may be or
may not enjoy total immunity from justiciability like Articles 122,
212 of the Constitution of India. This possible debate is left open
for future. However subject mentioned in clause (b) of the said
Article has been made justiciable before Special Court.
15. Keeping in view of the above discussion, we now
examine this matter. Looking at prayers of the two writ petition
(W.P.Nos.14303 & 14305 of 2014) it does not appear that the
election was called in question at that time nor subject thereof
touches any subject mentioned in clause (b). At that time, the
decision of declaring dead person being elected was not challenged
simply it could not be done so. Therefore the issue raised in both
the writ petitions as it stand on the date of filing could not be said
to be unamenable to the writ jurisdiction, as these issues are not
required to be adjudicated by the special forum as provided in the
Article 329 clause (b) read with Section 80 of the Representation of
the People Act, 1951. However, the issue raised at the time of
arguments and also vaguely stated in the second writ petition
(W.P.No.14305 of 2014) that the votes polled in favour of the
deceased candidate should be declared to be invalid and the votes
polled in favour of the remaining candidates should be counted and
results should be declared are concerned, the same do not relate to
any challenge to the election in real sense. Rather both the writ
petitioners seek for conducting election in accordance with the
provision of the said Act by reason of the fact that at that time
election was not held, it was really asked for as measure in the
event election is held with deceased as contesting candidate. Writ
Petition is non-maintainable, in the event reliefs sought for
touching the subjects as mentioned in the Article 329 of the
Constitution of India. In any event jurisdiction of the Writ Court is
not absolutely alien to even election dispute in certain situation as
it will appear from decision of the Supreme Court in case of
K. Venkatachalam Vs. A. Swamickan . The Apex Court after
discussing all the earlier decisions of the same Court on the
question of maintainability of writ petition under Article 226 of the
Constitution of India vis--vis Article 329(b) thereof concluded as
statement of law in paragraph 27 amongst other as follows:
. . Various decisions of this Court, which have
been referred to by the appellant that jurisdiction of the High
Court under Article 226 is barred challenging the election of a
returned candidate and which we have noted above, do not
appear to apply to the case of the appellant now before us.
Article 226 of the Constitution is couched in the widest possible
terms and unless there is a clear bar to jurisdiction of the High
Court its powers under Article 226 of the Constitution can be
exercised when there is any act which is against any provision of
law or violative of constitutional provisions and when recourse
cannot be had to the provisions of the Act for the appropriate
relief. In circumstances like the present one the bar of Article
329(b) will not come into play when the case falls under Articles
191 and 193 and the whole of the election process is over.
Consider the case where the person elected is not a citizen of
India. Would the court allow a foreign citizen to sit and vote in
the Legislative Assembly and not exercise jurisdiction under
Article 226 of the Constitution?
16. Hence, we are of the view that the first writ petition
(W.P.No.14303 of 2014) and the second one (W.P. No.14305 of
2014) should not be non-suited at present. Moreover, taking note
of subsequent event that election of deceased candidate does not
survive by reason of decision of fresh election, therefore questioning
election as interdicted by Article 329 (b) of Constitution of India
does not and cannot arise. If second writ petition is dismissed, the
writ petitioner would be remediless because of limitation prescribed
for presentation of election petition under statute. As far as the
third writ petition (W.P.No.24287 of 2014) is concerned, it did not
question the election nor tend to obstruct interfere with the election
process rather expedite the same. Therefore, the legal bar as
mentioned in Article 329 in this case is not applicable.
17. Now, the question is whether the name of the deceased
should have been deleted from the list of contesting candidates of
ballot paper.
18. In the case on hand, indisputably on account of death of
the aforesaid deceased, election could not be postponed, although
before insertion of the present Section 52 of the said Act, in such a
situation election could be countermanded as the deceased
belonged to unrecognized political party. In this case, nomination
paper of the deceased was accepted upon scrutiny and then
finalized since it was not withdrawn.
19. In this connection, the learned counsel for the 1st
respondent has rightly drawn our attention to the provisions of
Sections 36, 37 & 38 of the Representation of the People Act, 1951.
The same are set out hereunder for the sake of convenience.
36. Scrutiny of nominations:-
(1) On the date fixed for the scrutiny of
nominations under section 30, the candidates, their
election agents, one proposer of each candidate, and one
other person duly authorized in writing by each candidate
but no other person, may attend at such time and place as
the returning officer may appoint; and the returning officer
shall give them all reasonable facilities for examining the
nomination papers of all candidates which have been
delivered within the time and in the manner laid down in
section 33.
(2) The returning officer shall then examine the
nomination papers and shall decide all objections which
may be made to any nomination and may, either on such
objection or on his own motion, after such summary
inquiry, if any, as he thinks necessary, reject any
nomination on any of the following grounds:-
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not qualified or is
disqualified for being chosen to fill the seat under any of
the following provisions that may be applicable,
namely:-
Articles 84, 102, 173 and 191,
Part II of this Act, and sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of 1963);
or
(b) that there has been a failure to comply with
any of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the
proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of
sub-section (2) shall be deemed to authorize the rejection of
the nomination of any candidate on the ground of any
irregularity in respect of a nomination paper, if the
candidate has been duly nominated by means of another
nomination paper in respect of which no irregularity has
been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect which is not
of a substantial character.
(5) The returning officer shall hold the scrutiny on
the date appointed in this behalf under clause (b) of section
30 and shall not allow any adjournment of the proceedings
except when such proceedings are interrupted or
obstructed by riot or open violence or by causes beyond his
control:
Provided that in case an objection is raised by the
returning officer or is made by any other person the
candidate concerned may be allowed time to rebut it not
later than the next day but one following the date fixed for
scrutiny, and the returning officer shall record his decision
on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or rejecting the
same and, if the nomination paper is rejected shall record
in writing a brief statement of his reasons for such
rejection.
(7) For the purposes of this section, a certified copy
of an entry in the electoral roll for the time being in force of
a constituency shall be conclusive evidence of the fact that
the person referred to in that entry is an elector for that
constituency, unless it is proved that he is subject to a
disqualification mentioned in section 16 of the
Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers
have been scrutinized and decisions accepting or rejecting
the same have been recorded, the returning officer shall
prepare a list of validly nominated candidates, that is to
say, candidates whose nominations have been found valid,
and affix it to his notice board.
37. Withdrawal of candidature:-
(1) Any candidate may withdraw his candidature by
a notice in writing which shall contain such particulars as
may be prescribed and shall be subscribed by him and
delivered before three O'clock in the afternoon on the day
fixed under clause (c) of section 30 to the returning officer
either by such candidate in person or by his proposer, or
election agent who has been authorized in this behalf in
writing by such candidate.
(2) No person who has given a notice of withdrawal
of his candidature under sub-section (1) shall be allowed to
cancel the notice.
(3) The returning officer shall, on being satisfied as
to the genuineness of a notice or withdrawal and the
identity of the person delivering it under sub-section (1),
cause the notice to be affixed in some conspicuous place in
his office.
38. Publication of list of contesting candidates:- (l)
Immediately alter the expiry of the period within
which candidatures may be withdrawn under sub-section
(l) of section 37, the returning officer shall prepare and
publish in such form and manner as may be prescribed a
list of contesting candidates, that is to say, candidates who
were included in the list of validly nominated candidates
and who have not withdrawn their candidature within the
said period.
(2) For the purpose of listing the names under sub-
section (1), the candidates shall be classified as follows,
namely :-
(i) candidates of recognised political parties;
(ii) candidates of registered political parties other than
those mentioned in clause (i);
(iii) other candidates.
(3) The categories mentioned in sub-section (2)
shall be arranged in the order specified therein and the
names of candidates in which category shall be arranged in
alphabetical order and the addresses of the contesting
candidates as given in the nomination papers together with
such other particulars as may be prescribed.
20. It would appear from Section 36 of the Act mechanism
for decision making process for reception, rejection of nomination
papers, preparation and publication of the list of the candidates
having filed valid nomination is provided. After the publication of
the list by way of affixation, one can withdraw from such contest
under Section 37 within the time mentioned therein, and if any one
withdraws on or before expiry of date of withdrawal, Returning
Officer is duty-bound to prepare and publish the prescribed list of
contesting candidates under Section 38 of the Act in Form-7A
taking note of withdrawal. According to us, while rejecting the
argument of Sri M.S. Prasad, after publication of list containing
contesting candidates, it is not legally possible to delete the name of
any candidate (here deceased candidate) from the list. As the
language of Section 38 is mandatory in nature and once the date of
withdrawal of nomination expires and the list is published election
has to be held with this list, the Election Officer has no power to
delete the name under any circumstances from the list of
contesting candidates.
21. It is firmly settled that statutory authority cannot do
what is not provided in the statute expressly. In other words, he
cannot exercise inherent power like civil court to meet and mitigate
thorny situation to reach logical conclusion. If such a power is
imagined it will lead to giving charter of taking arbitrary and
capricious action inviting violence of Article 14 of the Constitution
of India.
22. What is observed and discussed as above is
supported by the decision of the Supreme Court in the case of Jitu
Patnaik Vs. Sanatan Mohakud . In paragraph-25 of the report,
Justice R.M. Lodha (as His Lordship then was) while examining
Section 38 of the said Act has observed as follows:
25. There is no doubt that only living persons can offer
themselves or be offered as candidates for membership of
Parliament or State Legislatures. However, once nomination
has been filed by a candidate and on scrutiny his candidature
is found proper and before the expiry of the period of the
withdrawal, he has not withdrawn his candidature and his
name is included in the list of validly nominated candidates
prepared under Section 38 of the 1951 Act and Rule 11 of the
1961 Rules, if death of a contesting candidate as defined in
Section 38 takes place, the consequences following the death of
such contesting candidate have to be found from electoral law
contained in the 1951 Act or the Rules framed thereunder.
23. It is true that after finalization of list of contesting
candidates and before the votes polled, there is no provision for
deletion of name of candidate, whose name has been accepted as
one of the contesting candidates. As on today, in the absence
thereof, election had to be held with the name of the deceased
candidate. Let us think a situation, if the deceased would not have
secured the highest number of votes and if some other living
contesting candidates would have got highest votes, could the
petitioners question election with name of the deceased candidate.
Answer is simply, in negative. The decision cited by Sri M.S. Prasad
of Allahabad High Court in the case of Madan Gopal Vs. Nek Ram
Sharma does not help to decide the issue involved herein as this
judgment was rendered under old provision of Section 52 which
was substantially different from present one. Present Section 52 of
the said Act is enforceable in case of death of candidate of
recognized political party before poll, whereas old one was
applicable in case of death of any contesting candidate whether
fielded by any political (recognized or unrecognized) party. Present
Section 52 does not speak of unlike previous one, word
contesting. Going by the previous provision of Section 52 the
Court held that the poll ought not to have been countermanded
and election should have been proceeded and Election Commission
did so rightly. Legal position at present thus emerges that unless
deceased candidate belonged to recognized political party election
cannot be adjourned. In that case, it was held by the Court that
countermanding of the election would be done in case of death of
contesting candidates nomination is not withdrawn before expiry of
date of withdrawal. In that case, it was further held that at the
time of drawing up of the list of contesting candidates under
Section 38 of the Act if any person having filed nomination, was
found to be dead then the Returning Officer had the authority to
exclude the name of the deceased person as he/she would not be
able to contest in election. But it is not possible after finalization of
the list of contesting candidates under Section 38 as it has been
observed in the Supreme Court decision in case of Jitu Patnaik
(2 supra).
24. Therefore, we are of the view that the decision to
proceed with the election with the name of the deceased contesting
candidate aforesaid is not unlawful going by the present provision
of law.
25. The next issue is whether the votes polled in favour of
the deceased candidate can be said to be invalid or not under the
law.
26. The learned counsel for the respondents has
appropriately drawn our attention to the Rules 56 and 66-A of the
Conduct of Election Rules, 1961 relating to the procedure for
deciding the valid and invalid votes polled. In case of ballot paper,
Rule 56 is the mechanism on what ground ballot papers after poll
at the time of counting, will be rejected by the Returning Officer.
We set out Rule 56 for this purpose.
56. Counting of votes:- (1) The ballot papers taken out of
each ballot box shall be arranged in convenient bundles and
scrutinized.
(2) The returning officer shall reject a ballot paper-
(a) if it bears any mark or writing by which the elector
can be identified, or
(b) if it bears no mark at all or, to indicate the vote, it
bears a mark elsewhere than on or near the symbol of one
of the candidates on the face of the ballot paper or, it
bears a mark made otherwise than with the instrument
supplied for the purpose, or
(c) if votes are given on it in favour of more than one
candidates, or
(d) if the mark indicating the vote thereon is placed in
such manner as to make it doubtful to which candidate
the vote has been given, or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its identity as
a genuine ballot paper cannot be established, or
(g) if it bears a serial number, or is of a design,
different from the serial numbers, or, as the case may be,
design, of the ballot papers authorised for use at the
particular polling station, or
(h) if it does not bear both the mark and the signature
which it should have borne under the provisions of sub-
rule (1) of rule 38:
Provided that where the returning officer is satisfied that
any such defect as is mentioned in clause (g) or clause (h) 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:
Provided further that a ballot paper shall not be rejected
merely on the ground that the mark indicating the vote is
indistinct or made more than once, if the intention that the vote
shall be for a particular candidate clearly appears from the way
the paper is marked.
(3) Before rejecting any ballot paper under
sub-rule (2), the returning officer shall allow each counting agent
present a reasonable opportunity to inspect the ballot paper but
shall not allow him to handle it or any other ballot paper.
(4) The returning officer shall endorse on every ballot
paper which he rejects the word "Rejected" and the grounds of
rejection in abbreviated form either in his own hand or by means
of a rubber stamp and shall initial such endorsement.
(5) All ballot papers rejected under this rule shall be
bundled together.
(6) Every ballot paper which is not rejected under this
rule shall be counted as one valid vote:
Provided that no cover containing tendered ballot papers
shall be opened and no such paper shall be counted.
(7) After the counting of all ballot papers contained in
all the ballot boxes used at a polling station has been
completed,-
(a) the counting supervisor shall fill in and sign Part II-
Result of Counting, in Form 16, which shall also be
signed by the returning officer; and
(b) the returning officer shall make the entries in a
result sheet in Form 20 and announce the particulars.
27. The sub-rule (2) of Rule 56 provides grounds for
rejection of ballot papers and it does not appear therefrom that the
death of any contesting candidate at the time of poll is a ground for
rejection. We are unable to accept the argument of Sri M.S. Prasad
that having regard to the reality we should read down the said sub-
rule that votes cast in favour of dead person at the time of election
is to be declared invalid; the Returning Officer being statutory
authority cannot act what is not provided expressly in the rule,
howsoever stark and ground reality is. It is for the Legislature to
deal with such situation, the Court cannot supply additional
ground suiting to the situation not contemplated by the Legislature,
even following concept of casus omissius. According to us, as law
stands today in the given situation stated above the dead person
should be treated notionally, being a contesting candidate, and the
result has to be declared, as it would appear from sub-rule (6) of
Rule 56 after discounting the rejected ballot papers, rest of the
valid ballot papers have to be counted, and by virtue of sub-rule (7)
of Rule 56 the result has to be declared in Form-16. Thereafter it
shall be signed by the Returning Officer followed by the entries in
the result in Form-20 and announcement thereof. These are
sequentially automatic process in an election, and cannot be halted
by any act or omission of any person not even court contrary to the
aforesaid provision.
28. Rule 66-A provides for mechanism of counting of votes
where electronic voting machines have been used. We, therefore,
set out Rule 66-A hereunder:
66A. Counting of votes where electronic voting machines
have been used:- In relation to the counting of votes at a
polling station, where voting machine has been used,-
(i) the provisions of rules 50 to 54 and in lieu of rules
55, 56 and 57, the following rules shall respectively apply,
namely:-
"55-C. Scrutiny and inspection of voting machines.-(1) The
returning officer may have the control units of the voting
machines used at more than one polling station taken up for
scrutiny and inspection and votes recorded in such units
counted simultaneously.
(2) Before the votes recorded in any control unit of a
voting machine are counted under sub-rule (1), the candidate
or his election agent or his counting agent present at the
counting table shall be allowed to inspect the paper seal and
such other vital seals as might have been affixed on the unit
and to satisfy themselves that the seals are intact.
(3) The returning officer shall satisfy himself that none
of the voting machines has in fact been tampered with.
(4) If the returning officer is satisfied that any voting
machine has in fact been tampered with he shall not count the
votes recorded in that machine and shall follow the procedure
laid down in Section 58, or Section 58A or Section 64A , as
may be applicable in respect of the polling station or stations
where that machine was used.
56-C. Counting of votes.- (1) After the returning officer is
satisfied that a voting machine has in fact not been tampered
with, he shall have the votes recorded therein counted by
pressing the appropriate button marked "Result" provided in
the control unit whereby the total votes polled and votes polled
by each candidate shall be displayed in respect of each such
candidate on the display panel provided for the purpose in the
unit.
(2) As the votes polled by each candidate are displayed
on the control unit, the returning officer shall have,-
(a) the number of such votes recorded separately in
respect of each candidate in Part II of Form 17C ;
Provided that the test vote recorded, if any, for a
candidate, as per item 5, in Part I of Form 17C, shall be
subtracted from the number of votes recorded for such
candidates as displayed on the control unit.
(b) Part II of Form 17C completed in other respects
and signed by the counting supervisor and also by the
candidates or their election agents or their counting
agents present; and
(c) corresponding entries made in a result sheet in
Form 20 and the particulars so entered in the result sheet
announced.
56-D. Scrutiny of paper trail.- (1) Where printer for paper
trail is used, after the entries made in the result sheet are
announced, any candidate, or in his absence, his election
agent or any of his counting agents may apply in writing to the
returning officer to count the printed paper slips in the drop
box of the printer in respect of any polling station or polling
stations.
(2) On such application being made, the returning
officer shall, subject to such general or special guidelines, as
may be issued by the Election Commission, decide the matter
and may allow the application in whole or in part or may reject
in whole, if it appears to him to be frivolous or unreasonable.
(3) Every decision of the returning officer under sub-
rule (2) shall be in writing and shall contain the reasons
therefor.
(4) If the returning officer decides under sub-
rule (2) to allow counting of the paper slips either wholly or in
part or parts, he shall-
(a) do the counting in the manner as may be directed
by the Election Commission;
(b) if there is discrepancy between the votes displayed
on the control unit and the counting of paper slips,
amend the result sheet in Form 20 as per the paper slips
count;
(c) announce the amendments so made by him; and
(d) complete and sign the result sheet.
57-C. Sealing of voting machines.-(1) After the result of voting
recorded in a control unit has been ascertained candidate-wise
and entered in Part II of Form 17C and Form 20 under Rule
56C, the returning officer shall reseal the unit with his seal
and the seals of such of the candidates or their election agents
present who may desire to affix their seals thereon so however
that the result of voting recorded in the unit is not obliterated
and the unit retains the memory of such result and where
printer for in such manner, as may be directed by the Election
Commission.
(2) The control unit and the paper slips so sealed shall
be kept in specially prepared boxes on which the returning
officer shall record the following particulars, namely:-
(a) the name of the constituency ;
(b) the particulars of polling station or stations where
the control unit has been used ;
(c) serial number of the control unit and printer
wherever used;
(d) date of poll ; and
(e) date of counting" ;
(ii) the provisions of rules 60 to 66 shall, so far as may be,
apply in relation to voting by voting machines and any
reference in those rules to,-
(a) ballot paper shall be construed as including a
reference to such voting machine ;
(b) any rule shall be construed as a reference to the
corresponding rule in Chapter II of Part IV or, as the case
may be, to rule 55C or rule 56C or rule 57C.
29. It would appear from sub-rule (2) of Rule 56-C that by
mechanized process the result of election automatically surfaces in
the machine itself if the button is pushed. In this mechanised
system, the valid and invalid votes are automatically segregated
and no manual interference is either required or possible. We are,
therefore, of the view that neither in the Act nor in the said Rules
provide any scope either expressly or by necessary implication for
rejection of votes cast in favour of deceased candidate on account of
her death occurred after finalization of the list of contesting
candidates and on or before date of election. Technically and
officially, the deceased person if he secures highest valid votes
under the provision of law, has to be declared to have been elected,
but the result would be a notional one. After declaration of the
result, the next step to be taken by virtue of Rule 66 by the
Returning Officer is to grant a certificate of election in Form-22 and
obtain an acknowledgment of receipt thereof from the candidate
duly signed by him and to immediately send the acknowledgment
by registered post to the Secretary of the House of People or as the
case may be, to the Secretary of the Legislative Assembly. Unless
this certificate is issued following above method, election of
candidate is not complete. Logically in case of death of contesting
candidate the certificate cannot be issued nor the same can be
acknowledged. Naturally the Return has to be submitted to the
Secretary that the candidate died at this stage. Thus at this stage
her election has to be declared as void on account of her death, as
it is rightly argued by the learned counsel for the respondents
Election Commission that by-election has to be held in accordance
with the provisions of Section 150 of the Representation of the
People Act, 1951.
30. Therefore, we dismiss W.P. Nos.14303 & 14305 of 2014
and we pass order in W.P.No.24287 of 2014 directing all the
respondents to act in accordance with law as part of election
programme schedule. There will be no order as to costs.
Consequently, pending miscellaneous petitions, if any, shall
also stand closed.
_______________________
Kalyan Jyoti Sengupta, CJ
_______________
Sanjay Kumar, J
COMMON ORDER
(Per Honble Shri Justice Sanjay Kumar)
I have perused the erudite opinion of the Honble The Chief Justice
and I am in respectful agreement with his decision as to the ultimate fate
of these three writ petitions. However, with due respect, I am unable to
subscribe to his views as to the maintainability of Writ Petition
Nos.14303 and 14305 of 2014. The Honble The Chief Justice has held
these two writ petitions to be maintainable and dismissed them on merits
while I am of the considered opinion that they are liable to be dismissed
in limine, being barred by Article 329(b) of the Constitution of India. I
therefore venture to record my dissent on this singular aspect of the
matter.
The notification for holding an election to Allagadda Assembly
Constituency was issued on 05.03.2014. The last date for withdrawal of
nominations was 23.04.2014. The election to this constituency was
slated to be held on 07.05.2014 and the result was to be declared on
16.05.2014. Writ Petition Nos.14303 and 14305 of 2014 were instituted
before this Court on 29.04.2014. The cause for the filing of these two writ
petitions was that one of the contesting candidates, Smt.Bhuma Shoba
Nagi Reddy of Yuvajana Sramika Rythu Congress Party, a registered but
unrecognized political party, expired in a road accident on 24.04.2014.
The prayers in these cases demonstrate that the petitioner in Writ
Petition No.14303 of 2014, a voter of Allagadda Constituency, not only
sought a declaration as regards a communication received from the
Election Commission of India but also asked for a consequential
direction to conduct the election to Allagadda Assembly Constituency by
deleting the name of the deceased candidate, Smt.Bhuma Shoba Nagi
Reddy, from the list of contesting candidates while in Writ Petition
No.14305 of 2014, the petitioner therein, another voter from the same
constituency, in addition to seeking declaratory relief as to a
communication dated 28.04.2014 from the Election Commission of India,
sought a consequential direction to treat the votes polled in favour of the
deceased candidate, Smt.Bhuma Shoba Nagi Reddy, as invalid and to
declare the results among the living candidates in accordance with Rule
64 of the Conduct of Election Rules, 1961.
The issue is whether these two writ petitions would be proscribed
by the constitutional embargo stipulated under Article 329(b) to the effect
that an election of this nature cannot be called in question except
through an election petition.
This issue is no longer res integra.
As long back as in the year 1952, a Constitution Bench of six
Judges in N.P.PONNUSWAMY V/s. THE RETURNING OFFICER,
NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM DISTRICT observed
that the word election has been used in Part-XV of the Constitution in
the wide sense, that is to say, to connote the entire procedure to be gone
through to return a candidate. In HARI VISHNU KAMATH V/s. SYED
AHMAD ISHAQUE , the Supreme Court observed that the word election
in Article 329(b) was used in a comprehensive sense including the entire
process of the election commencing with the issuance of a notification
and terminating with the declaration of election of a candidate, and that
a petition under Article 226 challenging the validity of any of the acts
forming part of that process would be barred. In ELECTION
COMMISSION OF INDIA V/s. ASHOK KUMAR , the Supreme Court again
affirmed that the term election occurring in Article 329 means and
includes the entire process from the issuance of the notification up to the
declaration of the results. In MOHINDER SINGH GILL V/s. CHIEF
ELECTION COMMISSIONER, NEW DELHI , the Supreme Court
reiterated that the term election has a very wide connotation and every
step from start to finish of the total process constitutes the election, not
merely the conclusion or culmination, and the rainbow of operations
covered by the compendious expression election commences from the
initial notification and culminates in the declaration of the returned
candidate.
The consistent view expressed by the Supreme Court over the
years is that the jurisdiction of this Court under Article 226 of the
Constitution would be barred in the context of any matter which may
arise while the election is in progress and Article 329(b) constitutes a
blanket ban on litigative challenges to electoral steps carrying forward
the process of the election to its culmination in the formal declaration of
the result. High Courts were held to be barred from entertaining writ
petitions after issuance of the election notification in the light of non
obstante clause in Article 329 of the Constitution. The only exception
carved out was where the electoral steps under challenge had the effect
of interfering in the free flow of the election or hindering the progress
thereof [ASHOK KUMAR6, MOHINDER SINGH GILL7, MANDA
JAGANATH V/s. K.S.RATHNAM ]. This was the view affirmed by a
Division Bench of this Court in POLOJI VEERAIAH V/s. RETURNING
OFFICER, KHAMMAM DISTRICT , of which I was a member.
It is relevant to note that the decision of the Supreme Court in
K.VENKATACHALAM V/s. A.SWAMICKAN was in the context of a post-
election writ petition. This decision therefore does not advance the
contention that recourse to Article 226 is permissible during the election
process. In ASHOK KUMAR6, the Supreme Court observed that if the
petition presented to the Court calls in question an election, the bar of
Article 329(b) is attracted. The conclusions recorded in para 32 of the
judgment are apposite and are extracted hereunder:
32. For convenience sake we would now generally sum up our
conclusions by partly restating what the two Constitution Benches
have already said and then adding by clarifying what follows
therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted
so as to include all steps and entire proceedings commencing
from the date of notification of election till the date of
declaration of result) is to be called in question and which
questioning may have the effect of interrupting, obstructing or
protracting the election proceedings in any manner, the
invoking of judicial remedy has to be postponed till after the
completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to
calling in question an election if it subserves the progress of
the election and facilitates the completion of the election.
Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the
election.
(3) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well-
settled parameters which enable judicial review of decisions of
statutory bodies such as on a case of malafide or arbitrary
exercise of power being made out or the statutory body being
shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the
progress of the election proceedings, judicial intervention is
available if assistance of the court has been sought for merely to
correct or smoothen the progress of the election proceedings, to
remove the obstacles therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed or rendered
irretrievable by the time the results are declared and stage is set
for invoking the jurisdiction of the court.
(5) The court must be very circumspect and act with caution
while entertaining any election dispute though not hit by the
bar of Article 329(b) but brought to it during the pendency of
election proceedings. The court must guard against any attempt
at retarding, interrupting, protracting or stalling of the election
proceedings. Care has to be taken to see that there is no
attempt to utilise the courts indulgence by filing a petition
outwardly innocuous but essentially a subterfuge or pretext for
achieving an ulterior or hidden end. Needless to say that in the
very nature of the things the court would act with reluctance
and shall not act, except on a clear and strong case for its
intervention having been made out by raising the pleas with
particulars and precision and supporting the same by necessary
material.
This Court would therefore not entertain or act upon a writ petition
which is outwardly innocuous but is essentially a subterfuge or pretext
for achieving an ulterior or hidden end. The consequential prayers of the
petitioners in both the subject cases manifest that they sought to
obstruct the natural flow of the ongoing election process. One wanted
deletion of the name of the deceased candidate from the list of contesting
candidates before the election while the other wanted the votes polled by
the deceased candidate to be treated as invalid and the election to be
decided on the basis of the votes polled by the remaining candidates. In
fact, the first prayer as to deletion of the deceased candidates name from
the list of contesting candidates is opposed to the ratio laid down by the
Supreme Court in JITU PATNAIK V/s. SANATAN MOHAKUD . In any
event, both the prayers sought to impact the election process and
interfere with it. No doubt, this Court did not pass interim orders in
either of these writ petitions interdicting the ongoing election process as
sought by the petitioners. However, the inescapable fact remains that the
writ petitions were instituted during the election process and the
prayers made therein attempted to obstruct and interfere with the same.
The mere fact that the election was permitted to go on and these writ
petitions are being taken up after the election would not endow them
with maintainability as their very institution was barred by Article 329(b)
of the Constitution. The contention of Sri M.S.Prasad, learned senior
counsel, that the petitioner in W.P.No.14303 of 2014 is not pressing his
prayer as to deletion of the deceased candidates name from the list of
contesting candidates now that the election is over, is therefore of no
avail. The case law cited by the learned senior counsel also does not
further his case. The two writ petitions therefore do not warrant
examination on merits and they are liable to be dismissed at the
threshold on the ground of maintainability. I accordingly hold so.
_____________________
K.J. SENGUPTA, CJ
____________________
SANJAY KUMAR, J
16th FEBRUARY, 2015
