Hari Vishnu Kamath vs Syed Ahmad Ishaque And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 61 of 1954

Decision Date: 9 December 1954

Coram: Natwarlal H. Bhagwati, B. Jagannadhadas, Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, T.L. Venkatarama Ayyar

The matter before the Supreme Court of India was titled Hari Vishnu Kamath versus Syed Ahmad Ishaque and Others, with the judgment rendered on 9 December 1954. The petition was filed by Hari Vishnu Kamath against Syed Ahmad Ishaque and other respondents. The judgment was delivered by a bench that included Justices Natwarlal H. Bhagwati, B. Jagannadhadas, Mehar Chand Mahajan, B. K. Mukherjea and Vivian Bose. In addition, the bench composition was recorded as comprising Justices Aiyyar, T. L. Venkatarama, Bhagwati, Natwarlal H., Jagannadhadas, B. Mahajan, Mehar Chand (Chief Justice), Mukherjea, B. K. Das, Sudhi Ranjan Bose and Vivian. The official citation of the decision appears as 1955 AIR 233 and 1955 SCR (1) 1104. The case primarily invoked the Constitution of India, specifically Article 226, which empowers High Courts to issue appropriate writs, including writs of certiorari, against authorities within their territorial jurisdiction. The issues addressed included the power of a High Court to issue a writ of certiorari against Election Tribunals after those tribunals had become functus officio, the distinction between writs of prohibition and writs of certiorari, the supervisory role of the High Court under Article 227, and the scope of representation of the people rules, particularly Rule 47(1)(c) of the 1951 Rules, concerning whether its provisions are mandatory or directory and the effect of errors apparent on the face of the record.

In its analysis, the Court explained that Article 226 confers an absolute and unqualified authority on High Courts to issue writs to any person or authority situated within their territorial jurisdiction, and that Election Tribunals operating within that territory fall within the ambit of this power. The Court held that the authority granted by Article 226 to issue a writ of certiorari against decisions of Election Tribunals is not curtailed by Article 329(b) of the Constitution. Consequently, even after an Election Tribunal has rendered a final decision and become functus officio, a High Court retains the jurisdiction to quash that decision by means of a writ of certiorari. The writ of certiorari is directed against the record of the offending order; because a record can be produced only through human agency, the writ is ordinarily addressed to the individual or authority whose decision is under review. The Court noted that the fact that the tribunal no longer exists does not impede the Court’s power to remove the record. The essential effect of a writ of certiorari is to demolish the offending order, and the physical presence of the former decision‑maker before the Court is not a prerequisite for the exercise of jurisdiction. Accordingly, the writ may be issued to any person who possesses custody of the record, whether that be the body that made the determination or another officer in possession of the relevant papers. The Court further clarified that the scope of Article 226 comprises two elements: first, the conferral of power on High Courts to issue writs and directions; and second, the definition of the limits of that power, which extend to all persons and authorities within the Court’s territorial jurisdiction. (1105)

In explaining the scope of its authority, the Court observed that the power to issue writs may be exercised over any person or authority that is situated within the geographic area over which the Court has jurisdiction. The emphasis on the words “within the territory” signifies that the Court’s power to grant writs is limited to the same territorial boundaries that define its judicial reach, and it does not depend on the particular nature or composition of the body against which the writ is directed. The Court then drew a clear distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition is appropriate only while the challenged proceedings are still pending; it can be invoked when a lower court or tribunal is still conducting its business. By contrast, a writ of certiorari for quashing may be invoked only after the proceedings have concluded with a final decision. Because a prohibition requires an ongoing proceeding, it cannot be granted if the court or tribunal that was hearing the matter no longer exists, since there would be no proceeding on which the prohibition could operate. A certiorari, however, targets the decision that has already been rendered, and the continued existence of the original court or tribunal is not a condition for setting aside that decision. The Court noted that election tribunals are subject to the superintendence of High Courts under Article 227 of the Constitution, a superintendence that is both judicial and administrative in nature. While Article 226 permits a High Court, through certiorari, merely to annul the tribunal’s decision, Article 227 enables the High Court to both annul the decision and issue further directions concerning the matter. Regarding the character and scope of certiorari, the Court laid down several well‑settled propositions. First, certiorari may be issued to correct errors of jurisdiction, such as when an inferior court or tribunal acts without jurisdiction, exceeds its jurisdiction, or fails to exercise the jurisdiction it possesses. Second, certiorari may be issued when the lower court or tribunal acts illegally within its proper jurisdiction, for example, by deciding a case without giving the parties an opportunity to be heard or by violating the principles of natural justice. Third, the Court emphasized that the authority granting certiorari exercises a supervisory jurisdiction, not an appellate one, and therefore it does not revisit the factual findings of the inferior body even if those findings appear erroneous. Fourth, the Court explained that a decision may be subject to certiorari when it contains a manifest error that is evident on the face of the record, such as a clear ignorance of or disregard for the law; such a patent error can be corrected, whereas a mere wrong decision that does not involve a clear legal mistake cannot be set aside on that ground. The Court concluded by observing that the precise definition of an error apparent on the face of the record cannot be exhaustively fixed, as it inherently contains an element of indefiniteness that must be resolved by the judiciary on the facts of each individual case.

The Court observed that the concept of indefiniteness possesses an intrinsic vagueness, and therefore the question of whether a statutory provision is indefinite must be resolved by the judiciary on the factual matrix of each individual case. It reiterated the well‑settled principle that a provision drafted in mandatory form may, in substance, be intended to operate as a directory rule, and that the mere presence of the word “shall” does not, by itself, determine the character of the provision. The Court noted that there are established rules for distinguishing mandatory enactments from directory ones, but these rules serve only as aids to discover the true intention of the legislature. Ultimately, legislative intent is the decisive factor, and it can be ascertained only by examining the surrounding context of the provision. Applying this approach, the Court examined Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, which states that “a ballot paper contained in a ballot box shall be rejected if it bears any serial number or mark different from the serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used.” The Court held that the term “shall” in this rule cannot be interpreted to mean “may”; consequently, the rule imposes a mandatory duty. The Court further declared that Rule 47(1)(c) is mandatory in the same manner as Rules 47(1)(a), 47(1)(b) and 47(1)(d).

Having established the mandatory nature of the rule, the Court held that the Tribunal erred plainly when it upheld the election of the first respondent on the basis of the 301 votes that were required to be rejected under Rule 47(1)(c). Because this mistake was evident on the face of the record, the Court found that the remedy of certiorari was appropriate to interfere with the Tribunal’s decision. The Court further held that the appellant’s prayer to be declared elected must be denied under section 97, since the respondent had pleaded in his recrimination petition that Rule 23 had been violated, a violation that, if established, would render the appellant’s election liable to be set aside even if he had been declared the winner. The Court found that the respondent’s plea had indeed been established. Accordingly, the Court set aside the entire election. In reaching this conclusion, the Court referred to a spectrum of authorities, namely N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others ([1952] S.C.R. 218), Durga Shankar v. Raghuraj Singh ([1955] S.C.R. 267), T. C. Basappa v. T. Nagappa ([1955] S.C.R. 250), Clifford O’Sullivan ([1921] 2 A.C. 570), Rex v. Electricity Commissioners ([1924] 1 K.B. 171), B. v. Wormwood Scrubbs (Governor) ([1948] 1 All E.R. 438), Waryam Singh and another v. Amarnath and another ([1954] S.C.R. 565), Parry & Co. v. Commercial Employees’ Association, Madras ([1952] S.C.R. 519), Veerappa Pillai v. Raman and Raman Ltd. and Others ([1952] S.C.R. 583), Ibrahim Aboobaker v. Custodian General ([1952] S.C.R. 696), Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Show ([1951] 1 K.B. 711; [1952] 1 K.B. 338), Rex v. Nat Bell Liquors Ltd. ([1922] 2 A.C. 128), Batuk K. Vyas v. Surat Municipality (A.I.R. 1953 Bom. 133), Julius v. Bishop of Oxford ([1880] L.R. 5 A.C. 214), Woodward v. Sarsons ([1875] L.R. 10 C. P. 733), Vashist Narain v. Dev Chandra ([1955] S.C.R. 509) and In Be South Newington Election Petition ([1948] 2 A.E.R. 503).

In 1954 an appeal was brought under Article 132 (1) of the Constitution of India against the judgment and order dated 4 November 1953 of the High Court of Judicature at Nagpur in Civil Miscellaneous Petition No 174 of 1953. Counsel for the appellant consisted of N C Chatterjee, Bakshi Tek Chand and Veda Vyas, assisted by S K Kapur and Ganpat Rai. Counsel for the first respondent was G S Pathak, assisted by Rameshwar Nath and Rajinder Narain. The appellate judgment was delivered on 9 December 1954 by Justice Venkatarama Ayyar.

The appellant and respondents 1 through 5 had all been duly nominated for election to the House of the People from the Hoshangabad constituency in Madhya Pradesh. Respondents 4 and 5 later withdrew their candidatures, leaving the contest to the remaining candidates. At the poll the appellant obtained 65 201 votes, the first respondent obtained 65 375 votes and the other candidates obtained far fewer votes; consequently the Returning Officer declared the first respondent duly elected.

The appellant subsequently filed Election Petition No 180 of 1952 seeking to set aside the election. He argued, inter alia, that 301 of the votes counted in favour of the first respondent should have been rejected under Rule 47 (1) (c) of Act No XLIII of 1951 because the ballot papers on which those votes were cast lacked the distinguishing marks prescribed by Rule 28. He further contended that the improper receipt of those ballots had materially affected the result of the election.

Rule 28 provides that ballot papers used for voting in an election covered by the chapter must contain a serial number and such distinguishing marks as may be decided by the Election Commission. The Commission had decided that ballot papers for parliamentary constituencies should bear a green bar printed near the left margin, whereas ballot papers for State Assembly constituencies should bear a brown bar.

In the present case voters for the House of the People at polling stations 316 and 317 in Sobhapur were mistakenly supplied with ballot papers bearing the brown bar intended for State Assembly elections instead of the required green‑barred parliamentary ballots. A total of 443 votes were cast at those stations; of these 62 votes were for the appellant, 301 votes were for the first respondent and the remaining votes were for the other candidates.

Rule 47 (1) (c) declares that a ballot paper found in a ballot box shall be rejected if it bears any serial number or mark different from the serial numbers or marks authorized for use at the polling station or booth where the ballot box was used. In his election petition the appellant maintained that, pursuant to this provision, the ballots issued at the Sobhapur stations without the required green mark should have been excluded, and that exclusion of those 301 votes would have removed the first respondent’s lead of 174 votes, thereby making the appellant the candidate with the highest number of votes.

In the election petition, the appellant argued that if the ballot papers bearing the wrong colour bar had been excluded in accordance with Rule 47(1)(c), the first respondent would have lost his lead of 174 votes and the appellant would have obtained the highest number of votes. Consequently, the appellant prayed that he be declared duly elected. The first respondent opposed the petition, contending that the Returning Officer at Sobhapur had correctly accepted the 301 votes because Rule 47 was merely directory and not mandatory. He further asserted that those votes had been accepted as valid by the Election Commission and that any defect, if it existed, had been cured. In addition, the first respondent filed a recrimination petition under section 97 of Act No. XLIII of 1951, claiming that at polling station 299 in Malkajra and at polling station 371 in Bammangaon ballot papers intended for the State Legislature election had been mistakenly issued to voters for the House of the People. He maintained that the Returning Officer had wrongly rejected all such votes and that, had they been counted, he would have obtained 117 votes more than the appellant. He therefore challenged the appellant’s claim to be declared elected. The Election Tribunal, by a majority, held that Rule 47(1)(c) was mandatory and that the 301 ballot papers found in the first respondent’s box, which bore the incorrect mark, should not have been counted. A third member, however, expressed the view that the rule was merely directory and that the Returning Officer possessed the discretion to accept the ballots. Despite this disagreement on the nature of the rule, the Tribunal was unanimous in concluding that the erroneous inclusion of those votes had not materially affected the result of the election, and on that basis it dismissed the petition.

The appellant then approached the High Court of Nagpur, invoking articles 226 and 227 of the Constitution, seeking a writ of certiorari or any other order to quash the Tribunal’s decision on the ground that it was illegal and beyond jurisdiction. The first respondent supported the Tribunal’s decision on the merits and argued that, pursuant to article 329(b), the High Court lacked competence to entertain the petition because it essentially questioned the validity of an election. The matter was heard by a bench comprising Chief Justice Sinha, and Justices Mudholkar and Bhutt. Chief Justice Sinha and Justice Bhutt held that no writ could be issued under article 226 because article 329(b) stripped the Court of that power, and also because the Election Tribunal had become functus officio after delivering its decision, leaving no tribunal to which directions could be issued. Justice Mudholkar concurred with the conclusion but based it solely on the tribunal’s functus officio status. Regarding article 227, Chief Justice Sinha and Justice Bhutt opined that it did not extend to Election Tribunals, whereas Justice Mudholkar believed that Election Tribunals fell within its scope, though he maintained that article 329(b) still barred any relief, whether setting aside the first respondent’s election or declaring the appellant elected, and that the only permissible order was to set aside the Tribunal’s decision.

The Court noted that, although article 329(b) barred any relief that would set aside the election of the first respondent or declare the appellant elected, the only order that could lawfully be issued was one that set aside the decision of the Election Tribunal. Regarding the merits, the Court observed that the majority—Sinha, C. J. and Bhutt, J.—held that the Tribunal’s finding that the result of the election had not been materially affected by the erroneous receipt of votes was made within the Tribunal’s jurisdiction and therefore could not be quashed under article 226 even if the Tribunal had erred in fact or law. In contrast, Mudholkar, J. opined that the Tribunal had exceeded its jurisdiction because it had considered matters irrelevant to the election, such as the polling officer’s mistake in issuing wrong ballot papers and the impact of that mistake on the election result. Accordingly, Mudholkar, J. believed the Tribunal’s decision should be set aside, leaving the Election Commission free to perform its statutory duties in the election petition. The petition was ultimately dismissed in accordance with the majority view. Nonetheless, the learned Judges granted a certificate under article 132(1), which brought the present appeal before this Court.

The first question for determination was whether High Courts possessed jurisdiction under article 226 to issue writs against decisions of Election Tribunals. Article 226 confers on High Courts the power to issue appropriate writs to any person or authority within their territorial jurisdiction in absolute and unqualified terms, and tribunals functioning within that territorial area consequently fall within the scope of that power. Any limitation on this authority must be grounded in a specific constitutional provision. The counsel for the first respondent argued that article 329(b) imposes such a limitation. Article 329(b) states: “Notwithstanding anything in this Constitution 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.” The Court then examined whether a writ proceeding could be said to call an election into question within the meaning of article 329(b). A plain reading of the article prohibits the initiation of proceedings to set aside an election except through an election petition filed in the manner prescribed. Consequently, a suit seeking to set aside an election would be barred by this provision. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others (1), this Court had previously held that…

In this case, the Court noted that the word “election” in article 329(b) was intended to be read broadly, to cover the whole electoral process from the issuance of the notification to the final declaration of a candidate’s election, and that any application under article 226 which challenged the validity of any act that formed part of that process would be barred by the constitutional provision. The Court explained that such applications were original proceedings calling an election into question and therefore fell within the prohibition enacted in article 329(b). However, the Court held that once proceedings are lawfully instituted in accordance with article 329(b) by presenting an election petition, the requirements of that article are fully satisfied.

The Court went on to say that after the election petition is properly heard by an Election Tribunal and a decision is rendered, the question of whether the Tribunal’s decision may be attacked, and if so, the appropriate forum and the extent of such attack, must be decided according to the general law applicable to Tribunal decisions. There is no dispute that Election Tribunals are subject to the supervisory jurisdiction of the High Courts under article 226; consequently, a writ of certiorari issued under article 226 is competent to review the decisions of Election Tribunals. The view that article 329(b) is limited only to the initiation of proceedings for setting aside an election and does not extend to the later stages after a Tribunal’s decision was strongly reinforced when the Court considered a candidate whose election had been set aside by a Tribunal. If that candidate applied under article 226 for a writ to set aside the Tribunal’s order, the Court held that he could not be said to be calling the election into question; rather, he was seeking to maintain it, and therefore his application could not be barred by article 329(b).

The Court warned that accepting the first respondent’s contention would lead to an anomalous result in which article 226 proceedings would be available in one circumstance but not in another, and would be available to one party but not to the other. Counsel for the first respondent was unable to provide any reason for this differentiation, and the Court refused to adopt an interpretation that produced such inconsistent outcomes. The Court noted that authority on this point was essentially settled. In Durga Shankar v. Raghuraj Singh, it had been contended that an appeal under article 136 against an Election Tribunal’s decision could not be entertained because it would amount to a proceeding calling an election into question, a matter the Constitution reserves only for a Tribunal under article 329(b). In overruling that contention, Justice Mukherjea observed: “The ‘non‑obstante’ clause with which article 329 of the Constitution begins and upon which the respondent’s counsel lays so much stress, debars us, as it debars any other court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the Election Tribunal alone that can decide.” The judgment concluded that the Election Tribunal alone possesses the authority to decide such election disputes, and that the High Court’s supervisory power under article 226 remains unaffected by article 329(b).

In this case the Court observed that disputes concerning elections must be commenced by way of an election petition and must follow the procedure laid down in the relevant statute. The Court further explained that once an Election Tribunal has rendered a determination or adjudication on the subject matter, the Supreme Court retains the authority to intervene through the grant of special leave, even though the Tribunal’s decision has been issued. By the same reasoning, the Court held that the jurisdiction of a High Court under article 226 to issue a writ of certiorari against the decisions of Election Tribunals is not curtailed by article 329(b) of the Constitution. The next argument raised was that, although a High Court may possess jurisdiction under article 226 to grant certiorari against an Election Tribunal’s decision, such jurisdiction could not be exercised because, under the framework of Act No. XLIII of 1951, the Tribunal is constituted as an ad hoc body limited to the determination of a specific election petition. The Tribunal, the Court noted, becomes functus officio upon pronouncing its decision, and consequently no longer exists as an authority to which a writ may be directed. The Court noted that the question presented is of considerable significance, yet there is scant direct authority on the point, and therefore the issue must be resolved primarily by examining the nature of a writ of certiorari when used for the purpose of quashing. The Court then turned to the historical usage of certiorari in English law. It explained that, traditionally, certiorari was employed not only to annul decisions but also for a variety of other purposes, such as removing actions and indictments pending in inferior courts for trial before the High Court; transferring civil orders and criminal sentences for execution to a superior court; ordering the production of depositions in bail applications when a prisoner had been committed to the High Court for trial; and removing the record of an inferior court when that record was needed as evidence in the High Court. These functions are recorded in Halsbury’s Laws of England, Volume IX, pages 840‑851, which also observes that the writ has become largely obsolete for most of those purposes because modern statutes now regulate them. The Court further cited American law, referring to Corpus Juris Secundum, Volume 14, page 151, which states that at common law the writ of certiorari served both as a post‑judgment review and as a mechanism to transfer an entire cause at any stage for determination by a superior court, but that in the United States the prevailing rule today is to refuse the writ when the lower tribunal has not reached a final determination and the proceeding is still pending. Since the present appeal concerns the use of certiorari to quash a decision, the Court concluded that the analysis must focus on whether, given the nature of the writ, it can be issued to review a decision of an Election Tribunal that has ceased to exist after rendering its decree. According to the common‑law principles outlined above, the Court proceeded to assess this specific issue.

In English law, a writ of certiorari is a high prerogative writ that is issued by either the Court of the King's Bench or the Court of Chancery and is directed to inferior courts or tribunals. The purpose of this writ is to exercise supervisory jurisdiction in order to verify that the inferior body has acted within the limits of its lawful authority. To accomplish this, the inferior court or tribunal is commanded to send the records of any cause or matter that is pending before it to the superior court so that the superior court may examine those records. If, after review, the order of the inferior court is found to have been issued without jurisdiction, the superior court will quash that order. However, the court that issues a certiorari for the purpose of quashing does not have the power to replace the inferior court’s decision on the merits, nor can it issue directions that the inferior court or tribunal must follow. The effect of the writ is therefore purely destructive: it merely nullifies the offending order that lacked jurisdiction and leaves the matter at that point without providing a new decision. In the case of T. C. Basappa v. T. Nagappa (1) the learned judge, Mukherjea, J., observed that when a writ of certiorari is granted the superior court does not act as an appellate tribunal. The superior court does not review or re‑weigh the evidence upon which the lower tribunal based its determination. Rather, it demolishes the order that it considers to be without jurisdiction or palpably erroneous, but it does not substitute its own view for that of the inferior tribunal. The offending order or proceeding is therefore removed as something that should not be used to the detriment of any person, as Lord Cairns explained in Walsall’s Overseers v. L. and N. W. Ry. Co. (2). The nature of a writ of certiorari for quashing is further explained in Corpus Juris Secundum, Volume 14 at page 123, which states that the writ is not a proceeding against the tribunal or an individual who composes it; instead it operates upon the cause or proceeding in the lower court and transfers it to the superior court for reinvestigation. Because the writ for quashing is directed against a record, and a record can be produced only through a person, the writ is issued to the person or authority whose decision is to be reviewed. Consequently, if the record of the decision is what must be removed by certiorari, the fact that the tribunal has become functus officio after rendering its decision does not affect the jurisdiction of the superior court to remove that record. By contrast, if the writ were to issue directions, it would be necessary that a person or authority remains in existence to receive those directions, and in such a case the cessation of the tribunal might bar the issuance of the writ. Nevertheless, when the true scope of certiorari to quash is understood as merely destroying the offending order, the presence of the offending body before the court, while convenient, is not required for the exercise of jurisdiction nor for the effectiveness of the court’s determination. The counsel for the first respondent invited further discussion on this point.

The Court noted that the argument focused on the form of the order nisi in a writ of certiorari. The argument asserted that because the order requires the court or tribunal whose proceedings are to be reviewed to transmit the records to the superior court, the disappearance of the tribunal would leave no person or authority to whom the writ could be addressed and no one who could be compelled to produce the record. The Court observed, however, that if the writ is in reality directed against the record itself, there is no reason why it could not be issued to whoever has custody of that record. To support this view, the Court quoted the statement of law from Ferris on the Law of Extraordinary Legal Remedies, which declares that “the writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified.” The Court then referred to section 103 of Act No. XLIII of 1951, which obliges the Tribunal, after pronouncing its order, to send the case records either to the relevant District Judge or to the Chief Judge of the Court of Small Causes. The provision does not create any legal obstacle to issuing a writ to those officers for the purpose of transmitting the record to the High Court. The Court held that the power conferred by article 226 to issue a writ to a “person” is sufficiently broad to include any individual who possesses custody of the record, and that the officers named in section 103 fall within the jurisdiction of the High Court under article 226.

The Court further considered the contention that the wording of article 226, which provides that the High Court may issue writs or directions to any person or authority within its territorial jurisdiction, implies the existence of a specific person or authority to whom the writ must be addressed, and therefore precludes issuance when no such authority exists. The Court rejected this interpretation, stating that the true import of the article is two‑fold: first, it grants High Courts the power to issue writs and directions; second, it delineates the limits of that power by specifying that it may be exercised over any person or authority situated within the territory over which the court exercises jurisdiction. The emphasis, the Court explained, is on the phrase “within the territory,” indicating that the scope of the writ‑making power is co‑extensive with the court’s territorial jurisdiction, not dependent on the nature or composition of the lower tribunal. The Court observed that the first respondent relied on the decision in Clifford O’Sullivan as authority for the proposition that no writ could be issued against a Tribunal that had ceased to exist. In that case, the appellants had been tried by a military court and convicted, and later applied for a writ of prohibition, which was refused on the ground that the court had become functus officio. The Court indicated that this precedent was distinguishable for the present purpose.

In the matter under consideration, the first respondent reported that the petitioners had filed a writ of prohibition on the tenth day of May, 1921, seeking to restrain the officers of a court that had rendered a decision on the third day of May, 1921. The court had declined to grant the writ on the basis that the officers had become functus officio, meaning that they no longer possessed authority to act because their function had been completed. The respondent argued that the same principle should apply to a petition for certiorari directed against the decision of an Election Tribunal that had likewise become functus officio. To support this argument, the respondent relied upon the observations of Atkin, L.J., made in the case of Rex v. Electricity Commissioners; London Electricity Joint Committee Co. (1920), Ex parte, and asserted that those observations demonstrated that there was no distinction in law between a writ of prohibition and a writ of certiorari. According to the cited passage, both writs were intended to restrain inferior courts or bodies from exceeding their jurisdiction, and both could be issued not only against courts but also against any authority exercising judicial or quasi‑judicial functions. Nevertheless, the passage also identified a fundamental distinction that was relevant to the present dispute. The distinction lay in the stage of the proceedings at which each writ could be invoked. When an inferior court commenced a hearing over a matter over which it lacked jurisdiction, the party against whom the proceedings were instituted could apply to a superior court for a writ of prohibition; the superior court would then issue an order forbidding the inferior court from continuing the improper proceedings. By contrast, if the inferior court had already heard the matter and rendered a decision, the aggrieved party could only approach the superior court for a writ of certiorari; the superior court would then issue an order quashing the decision on the ground that the inferior court had acted without jurisdiction. The authorities further explained that a situation could arise in which an inferior court rendered a decision that did not finally dispose of the entire dispute. In such circumstances, the aggrieved party might need to seek both certiorari, to set aside the part of the decision that had already been made, and prohibition, to prevent any further continuation of the proceedings. Some authorities went on to say that where an application was made for a writ of prohibition without any accompanying prayer for certiorari, the superior court retained the power to halt any further proceedings that were consequential upon the earlier decision. However, once the proceedings had come to an end, it was considered too late to issue a prohibition, and the proper remedy was to seek certiorari to quash the final decision. In general, and apart from the specific categories just described, a writ of prohibition was available only while the proceedings were still pending in the lower forum, whereas a writ of certiorari could be issued after the lower forum had terminated its proceedings and rendered a final decision. Consequently, if a writ of prohibition could be granted only when there were pending proceedings in a court, it followed that such a writ could not be granted after the court had ceased to exist, because there would be no ongoing proceeding on which the writ could operate. By contrast, a writ of certiorari could still be issued to annul a decision, because the continued existence of the court or tribunal that had rendered the decision was not a condition for the decision to be set aside.

In this part of the judgment, the Court explained that a writ of certiorari to quash a decision differs fundamentally from a writ of prohibition because certiorari is directed against the substantive decision rendered by a court or tribunal, and the continued existence of that court or tribunal is not a prerequisite for the decision to be set aside. The Court cited a passage from Juris Corpus Secundum, Volume 14, page 126, which states that although both writs arise for want of jurisdiction or excess of jurisdiction, certiorari is distinguished by its focus on the cause or proceeding in the lower court rather than on the court itself, whereas prohibition is a preventive remedy aimed at restraining future action and is directed at the court. The Court therefore held that the decision in Clifford O’Sullivan, which dealt with a writ of prohibition, could not be applied to a writ of certiorari for quashing. Moreover, the Court noted that in the Clifford O’Sullivan case the military court had already pronounced its sentence before the application for prohibition was filed; consequently, a prohibition would have failed regardless of whether the tribunal was functus officio. Viscount Cave, speaking for the majority, observed that the officers of the military court had completed their investigation and reported to the commanding officer, leaving nothing for them to do, and a writ of prohibition directed at them would be ineffective. The Court referred to the authorities In re Pope and Chabot v Lord Morpeth in support of this observation.

The Court then turned to the decision in B v Wormwood Scrubs (Governor), where the applicant had been sentenced by a court‑martial sitting in Germany and was subsequently imprisoned in England. The applicant sought a writ of habeas corpus, contending that the military court lacked jurisdiction over him. The Court agreed with this contention, holding that the conviction was void for lack of jurisdiction and consequently issuing a writ of habeas corpus. However, because the applicant remained in custody under a warrant of conviction, the Court explained that unless the conviction itself was set aside, a habeas corpus writ could not be granted. In these circumstances the Court issued a writ of certiorari quashing the court‑martial’s conviction. It was noted that the military court was an ad hoc body that no longer existed at the time the writ was issued, and the respondents to the application were the Governor and the Secretary for War. The dissolution of the court‑martial did not bar the grant of certiorari. The Court also mentioned a decision of this Court in The Lloyds Bank Ltd v The Lloyds Bank Indian Staff Association and others, indicating that similar principles had been applied in other contexts. This discussion underscored that the termination of a tribunal or court does not automatically preclude the issuance of a certiorari writ to annul its earlier decision.

In that case, and following the decision in Clifford O’Sullivan (2), the Calcutta High Court had refused to entertain applications for the issue of writs of certiorari and prohibition against the decision rendered by the All India Industrial Tribunal (Bank Disputes). The High Court based its refusal, among other reasons, on the ground that the Tribunal had ceased to exist. An appeal against this judgment was subsequently made to this Court. On behalf of the appellant, it was argued that a proper construction of section 7 of the Industrial Disputes Act would require that the Tribunal be regarded not as an ad hoc body created solely for the adjudication of a particular dispute, but rather as a permanent Tribunal that continued “in a sort of suspended animation” and that “functioned intermittently.” This Court, while agreeing with the High Court’s decision, rejected the appellant’s contention. The submission that a writ of certiorari could still be issued even after the Tribunal had become functus officio was not pressed, and consequently no decision was rendered on the precise question now before us.

Turning to the substance of the matter, once it is accepted that the Constitution intended to vest the High Courts with a power to supervise the decisions of Tribunals by means of appropriate writs and directions, the exercise of that power cannot be defeated by technical considerations of form and procedure, as noted in Civil Appeal No. 42 of 1952 and in (1921) 2 A.C. 570. In P. C. Basappa v. T. Nagappa (1), this Court observed that, in view of the express constitutional provisions, it is unnecessary to revert to the early history or the procedural technicalities of these writs in English law, nor to feel constrained by any differing opinions expressed in particular English cases. The Court stated that an order or a writ in the nature of “certiorari” may be made in all appropriate cases and in an appropriate manner, provided that the broad and fundamental principles governing the jurisdiction to grant such writs, as derived from English law, are respected.

Consistent with those principles, it is appropriate to hold that High Courts possess the authority under article 226 of the Constitution to issue writs of certiorari for the purpose of quashing the decisions of Election Tribunals, even though those tribunals become functus officio after delivering their decisions. Moreover, this Court is of the opinion that Election Tribunals fall within the superintendence of the High Courts under article 227 of the Constitution, and that such superintendence encompasses both judicial and administrative dimensions. This view was affirmed by this Court in Waryam Singh and another v. Amarnath and another (2), where it was observed that article 227 goes beyond the scope of section 224 of the Government of India Act, 1935—under which superintendence was purely administrative—and effectively restores the position that existed under section 107 of the Government of India Act, 1915. It is also noteworthy that, while a writ of certiorari under article 226 empowers the High Court merely to annul the Tribunal’s decision, a writ issued under article 227 empowers the Court not only to annul the decision but also to issue further directions concerning the matter. Accordingly, we must hold that

The Court observed that the appellant’s request for a writ of certiorari together with additional reliefs was properly maintainable under Articles 226 and 227 of the Constitution. After establishing maintainability, the Court turned to the substantive issue of whether the present case presented sufficient grounds for the issuance of a writ of certiorati. The matter was complicated by extensive argument concerning the precise nature and extent of the writ of certiorati and the circumstances in which it could be granted. The Court noted that this issue had been examined in several earlier authorities, namely Parry & Co. v. Commercial Employees’ Association, Madras (1), Veerappa Pillai v. Raman and Raman Ltd. and Others (2), Ibrahim Aboobaker v. Custodian General (3) and, more recently, T. C. Basappa v. T. Nagappa (4). Relying on the principles articulated in those decisions, the Court set out a series of established propositions that would guide its analysis of the present petition.

First, the Court affirmed that a writ of certiorati is appropriate where an inferior Court or Tribunal commits an error of jurisdiction, either by acting without any jurisdiction, by exceeding the jurisdiction it possesses, or by failing to exercise jurisdiction that it lawfully holds. Second, the Court explained that certiorati may also be issued when the inferior adjudicatory body, though exercising a jurisdiction that is undisputed, does so in an illegal manner—such as by rendering a decision without affording the parties an opportunity to be heard or by contravening the principles of natural justice. Third, the Court clarified that the power to issue certiorati is exercised in a supervisory capacity rather than an appellate one; consequently, the superior Court does not re‑examine the factual findings of the lower body even if those findings appear to be erroneous. This approach rests on the principle that a Court vested with jurisdiction over a subject‑matter is competent to decide both correctly and incorrectly, and that where the legislature has not provided a right of appeal, it would be contrary to legislative intent to permit a higher Court to rehear the case on the evidence and substitute its own factual conclusions in a certiorati proceeding. The Court emphasized that these propositions are well settled and not presently contested. Finally, the Court addressed a point of residual controversy: whether a writ of certiorati may be granted when the inferior Court or Tribunal’s decision is legally erroneous. The Court referred to the precedent set in Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw (5), wherein it was held that when a Tribunal issues a “speaking order” and the reasons recorded in support of that order are legally defective, certiorati may be warranted. The Court cited the observations of Lord Goddard, C.J., who described this as the true scope of the supervisory power, and also referenced the authorities Walsall Overseers v. London and North Western Ry. Co. (1) and Rex v. Nat Bell Liquors Ltd. (2) to reinforce the principle that an error apparent on the face of the record constitutes a valid ground for granting certiorati.

In the passage under discussion, the Court explained that when an order exhibited a clear error, the Court of Queen’s Bench could be asked to take the order under its review, examine it on its face, and, if it found an error apparent on the face, set aside the order by quashing it. The Court cited the observations of Lord Cairns, L.C., in the earlier case of Walsall Overseers v. London and North Western Ry. Co., who stated that any indication that the order was erroneous permitted the higher court to intervene and nullify it. The Court also referred to the judgment of Lord Sumner in Rex v. Nat Bell Liquors Ltd., where he explained that supervisory jurisdiction covered two aspects: the scope of the inferior court’s authority and the observance of law while exercising that authority. The earlier decision in Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw was taken on appeal and subsequently affirmed by the Court of Appeal in the same case. While laying down that an error of law constituted a ground for granting certiorari, the learned judges stressed that such error had to be evident on the face of the record. Denning, L.J., who described the power in wide terms, observed that “throughout all the cases there is one governing rule: certiorari is only available to quash a decision for error of law if the error appears on the face of the record.” Morris, L.J., summed up the position by declaring that certiorari was not a disguised appeal, that it did not exist to bring an order back for rehearing, but solely to correct an error of law, a manifest irregularity, or a jurisdictional excess or deficiency that was shown on the face of the order or decision (1) [1879] 4 A.C. 30. (2) [1922] 2 A.C. 128. (3) [1961] 1 K.B. 711. (4) [1952] 1 K.B. 338.

The Court further noted that, under article 226, a writ should be issued in grave situations where subordinate tribunals or officials act wholly without jurisdiction, exceed their jurisdiction, violate principles of natural justice, refuse to exercise a vested jurisdiction, or commit an error that is apparent on the face of the record, as observed in Veerappa Pillai v. Raman & Raman Ltd. and Others. In T.C. Basappa v. T. Nagappa, the law was stated that an error in the decision itself could be amenable to a writ of certiorari, provided the error was manifest on the face of the proceedings, such as a clear ignorance or disregard of legal provisions; in other words, a patent error that could be corrected by certiorari, not merely a wrong decision. From these authorities, the Court concluded that it was settled law that a writ of certiorari could be issued to correct an error of law, but that the error must be more than a mere mistake; it must be a manifest error apparent on the face of the record.

The Court explained that a simple mistake does not qualify for a writ of certiorari; the mistake must be manifest on the face of the record. The difficulty, the Court noted, is not in stating this principle but in applying it to the facts of any given case. Determining the point at which a mere error becomes an error apparent on the face of the record proved to be a challenging task. Counsel for both sides were unable to point to a precise rule that would clearly separate the two categories of errors. Mr. Pathak, appearing for the first respondent, relied on observations of Chief Justice Chagla in the case of Batuk K. Vyas v. Surat Municipality, asserting that an error could not be described as apparent on the face of the record unless it was self‑evident and did not require any further examination or argument to be established. The Court observed that this test could provide a satisfactory basis for decision in most cases, but it might break down in certain situations, as illustrated by the authorities cited as (1) [1952] S.C.R. 583, (2) [1955] S.C.R. 250 and (3) A.I.R. 1953 Bom. 133. Judicial opinions differ, and an error that one judge regards as self‑evident may not be seen as such by another. Consequently, the Court held that the concept of an error apparent on the face of the record cannot be defined with precision or exhaustive completeness; it contains an inherent element of indefiniteness and must be determined by the judiciary on the facts of each individual case. Having set out these governing principles for the grant of certiorari, the Court turned to consider whether the present facts warranted the issuance of such a writ.

The Tribunal, as previously noted, had held by a majority that Rule 47(1)(c) was mandatory and therefore the three hundred and one ballot papers discovered in the box of the first respondent ought to have been rejected under that rule because they lacked the distinguishing marks required by Rule 28. The Tribunal also concluded, relying on section 100(2)(c) of Act No. XLIII of 1951, that the result of the election had not been materially affected by the Returning Officer’s failure to comply with Rule 47(1)(c), and consequently dismissed the petition. Counsel for the appellant, Mr. N. C. Chatterjee, argued that in arriving at this conclusion the Tribunal had considered matters extraneous to the enquiry required under section 100(2)(c), such as the polling officer’s mistake in issuing incorrect ballot papers and the possible impact of that mistake on the voting result. He contended that because of this, the Tribunal’s decision was liable to be set aside by certiorari on two grounds: first, an error of jurisdiction, and second, an error in the construction of section 100(2)(c) that was apparent on the face of the record. The first respondent, however, maintained that the Tribunal’s decision to reject the three hundred and one ballot papers under Rule 47(1)(c) was erroneous because that rule was merely directory and not mandatory, and because the Election Commission had subsequently validated those papers, rendering the Tribunal’s decision final. The respondent further argued that even if the ballot papers were subject to rejection under Rule 47(1)(c), the Tribunal, in deciding whether the election result was materially affected under section 100(2)(c), should have ascertained the true intention of the voters, and that the polling officer’s mistake under Rule 23 and its effect on the election result fell within the scope of the enquiry under that provision. The correctness of these respective contentions was now left for determination.

The appellant argued that the rejection of the ballot papers under Rule 47(1)(c) was incorrect because that rule is merely directory rather than mandatory, and because the Election Commission had subsequently validated those papers, making the decision final. He further maintained that even if the ballot papers in question were liable to be rejected under Rule 47(1)(c), the Tribunal, in order to decide under section 100(2)(c) whether the result of the election had been materially affected, must first ascertain the true intention of the voters; consequently, the mistake of the polling officer under Rule 23 and its effect on the election result fall within the scope of the enquiry contemplated by that provision. The correctness of these submissions is now left for determination. Regarding the question of whether Rule 47(1)(c) is mandatory, Mr Pathak submitted that, although the rule states that the Returning Officer shall reject the ballot papers, the true meaning of the provision is that the officer has the power to reject them, and that, on that construction, his discretion to accept them cannot be questioned. He relied upon well‑recognised rules of statutory construction which hold that a provision should be read as directory when it relates to the performance of public duties or when the prescribed conditions must be performed by persons other than those to whom the right is conferred. In particular, he cited the authority in Maxwell on Interpretation of Statutes, 10th Edition, pages 381 and 382, which observes: “To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list not delivered till a later day invalid, would in effect, put it in the power of the person charged with the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for acceptance.” He argued that to reject the votes of electors because the polling officer failed to deliver the correct ballot papers under Rule 23 would amount to disfranchisement, and that a construction leading to such a result should be avoided. It is well‑established that a provision expressed in mandatory form may, in substance, be directory, and that the presence of the word “shall” does not inevitably render the provision mandatory. The issue was examined in depth in Julius v. Bishop of Oxford, where various rules were laid down for distinguishing mandatory from directory statutes. Those rules are well‑known and need not be restated; they serve only as aids to discover the true intention of the legislature, a determination that ultimately depends on the context. Accordingly, the question that must be answered is whether, in Rule 47, the word “shall” can be construed to mean “may.” Rule 47(1) addresses three other categories of ballot papers.

The Court observed that Rule 47(1)(a) prescribed that a ballot paper bearing any mark or writing by which the elector could be identified must be rejected. Because the secrecy of voting is fundamental to a ballot election, the Court held that this provision is mandatory and that any breach requires the vote to be rejected. This approach was affirmed in Woodward v. Sarsons, which interpreted section 2 of the Ballot Act 1872 in the same manner; that section similarly mandated rejection of a vote that failed to comply, and the Court noted that the same result follows for a vote affected by Rule 47(1)(b). Turning to Rule 47(1)(d), the provision states that a ballot paper shall be rejected if it is spurious or so damaged or mutilated that its authenticity cannot be established. The Court said that the word “shall” in this sub‑rule cannot be read as “may”, since the Returning Officer has no authority to accept a spurious or unidentifiable ballot. Having concluded that “shall” carries a mandatory meaning in sub‑rules (a), (b) and (d), the Court reasoned that it must likewise be interpreted as mandatory in Rule 47(1)(c). The Court further explained that the practical difference between a mandatory and a directory provision is that the former must be strictly obeyed, whereas the latter requires only substantial compliance. When a rule commands that a ballot paper shall be rejected, there is no scope for partial compliance; rejection is an all‑or‑nothing requirement. This logical analysis led the Court to confirm that the rejection provision in Rule 47(1)(c) is also mandatory.

The Court then addressed the contention that the Election Commission had validated the disputed votes, thereby precluding challenge to the Returning Officer’s acceptance of the ballot papers under Rule 47(1)(c). It noted that in several polling stations where elections for both the House of the People and the State Assembly were held, ballot papers had been interchanged. The Election Commission issued directions allowing a relaxation of the distinguishing mark required by Rule 28, provided that such relaxation received prior approval before counting. At Hoshangabad, the Returning Officer reported to the Chief Electoral Officer of Madhya Pradesh that incorrect ballot papers had been issued because of polling officers’ mistakes, and he obtained the Commission’s approval to include those papers before the count. Counsel for the petitioner argued that the Commission’s power to prescribe a distinguishing mark also includes the power to replace an existing mark, and that by approving the interchange at Hoshangabad the Commission had effectively approved the mark on those ballot papers, making them valid. The Court acknowledged that while the Commission possesses the authority to prescribe and modify distinguishing marks, the factual record showed that the Commission did not change the prescribed mark for Lok Sabha ballots from a green bar to a brown bar. The green bar remained the authorized mark, and the majority of ballot papers bore it. The Commission’s action, the Court held, was limited to condoning defects in a specific number of ballot papers, not to prescribing a new distinguishing mark.

In this case, the argument was raised that the Election Commission possessed the authority to alter an already prescribed distinguishing mark on ballot papers, replace it with a new one, and that by approving the interchange of ballot papers at Hoshangabad, the Commission had in effect endorsed the distinguishing mark displayed on those papers, thereby rendering them valid in the eyes of the Returning Officer. While it is undisputed that the Commission has the power to prescribe a distinguishing mark for ballot papers, the question that required examination was whether it had actually exercised that power to change the mark. The Commission had not issued a decision under Rule 28 stating that the ballot papers for the election to the House of the People should bear a brown bar instead of the green bar that had been prescribed. Consequently, the green bar remained the applicable distinguishing mark, and the vast majority of the ballot papers bore that mark. What the Commission actually did was to condone the defects in a limited number of ballot papers issued at the Hoshangabad polling stations, an act that does not amount to prescribing a new distinguishing mark as contemplated by Rule 28, which must apply uniformly to the entire election. There can be no scenario in which one distinguishing mark is applied to some voters and a different one to others for the same election at the same polling station. Moreover, the Commission’s approval was given after the polling had taken place, although it was before the counting of votes. Rule 23 imposes on the polling officer the duty to furnish each voter with a proper ballot paper, and if a distinguishing mark has been prescribed under Rule 28, that mark must be present on the ballot paper delivered. Therefore, any alteration of the original distinguishing mark must occur before the commencement of the poll, and the ballot paper must display the new mark at that stage. Because the Commission’s approval arrived after polling, it could not legitimize the three hundred and one ballot papers that lacked the prescribed distinguishing mark, and those papers were subject to rejection under Rule 47 (1)(c). The Tribunal’s majority finding that the Returning Officer had contravened Rule 47 (1)(c) by accepting the questioned ballot papers must consequently be upheld. The remaining issue concerned the appellant’s contention that the Election Tribunal’s decision under section 100(2)(c), which held that the result of the election had not been materially affected, was erroneous because it was based on considerations extraneous to that provision. This raised the question of the scope of an enquiry under section 100(2)(c). The provision requires that, before an order setting aside an election can be made, two cumulative conditions must be satisfied: first, it must be shown that there was improper reception or refusal of a vote, or reception of a void vote, or non‑compliance with constitutional or statutory provisions, rules, or orders; second, it must be demonstrated that, as a consequence, the result of the election was materially affected. The burden of proving both conditions rests on the party seeking to set aside the election.

In this case, the Court explained that section 100(2)(c) requires two separate conditions to be satisfied before an election may be set aside. First, it must be shown that a vote was either void or that there was non‑compliance with any provision of the Constitution, the Act of 1951, any rules or orders made under that Act, any other relevant legislation, or that there was a mistake in using the prescribed form. Second, it must be demonstrated that the result of the election was materially affected by such irregularity. Both conditions must be established cumulatively, and the burden of proving them rests on the party seeking to nullify the election. The Court cited its earlier decision in Vashist Narain v. Dev Chandra, reporting that this principle has been affirmed by precedent. The Tribunal had previously held that Rule 47(1)(c) is mandatory, and that the Returning Officer’s acceptance of three hundred and one ballot papers lacking the required distinguishing marks breached that rule. Accordingly, the first condition of section 100(2)(c) was satisfied. The remaining issue was whether the appellant had proved that the election result was materially affected by the breach of Rule 47(1)(c). Counsel for the appellant, Mr. Chatterjee, argued that once the breach of Rule 47(1)(c) was established, the material effect followed automatically because the margin between the appellant and the first respondent was only one hundred and seventy‑four votes. He asserted that if the improperly counted ballot papers had been excluded, the valid votes alone would have produced a different winner under Rule 48, thereby materially affecting the result. In response, counsel for the respondent, Mr. Pathak, contended that this argument could not succeed in view of other facts uncovered in the case. He pointed out that Rule 47 was not the sole rule violated; the polling officer’s mistake in issuing the wrong ballot papers breached Rule 23, the distinguishing mark was printed faintly violating Rule 28, and there existed a chain of breaches leading up to the final violation of Rule 47(1)(c). He argued that the effective cause of the breach was the earlier violation of Rule 23, and that all these matters were relevant when judging whether the election result had been affected. The Court noted that the purpose of an election is to enable the majority of voters to choose their representative, and therefore it is necessary to ascertain the voters’ intention from the ballot papers regardless of any formal defects. Consequently, the Tribunal was empowered to look beyond the procedural barriers created by Rules 23, 28 and 47(1)(c) in order to determine if the declared result truly reflected the voters’ will.

Rules 23, 28 and 47(1)(c) are intended to discover the intention of the voters, and if that intention is accurately reflected in the result of the election as declared under Rule 48, the petition under section 100(2) must be dismissed. The counsel for the petitioner disputed this position and argued that the enquiry authorised by section 100(2) should be confined to the matters that were raised in the original election petition. Since the election petition contained no complaint about a breach of Rule 23, the counsel contended that the issue lay outside the scope of the enquiry. It was unnecessary to decide whether the Tribunal was empowered to consider matters not specified in the petition, because the returned candidate was merely seeking to support the declaration of his election. The petitioner, however, had filed a recrimination petition under section 97 that raised the question of a breach of Rule 23, and that question therefore required determination. The Tribunal examined the allegation, found that Rule 23 had indeed been violated, and its finding was not open to attack in the present proceedings and had not been contested. Consequently, the real controversy centred on the effect of that finding on the rights of the parties. The answer to that issue was to be located in section 97, which permits all matters that could constitute grounds for setting aside the election of the petitioner, had he been returned under Rule 48, to be raised in response to his prayer for being declared duly elected.

Under section 97, any ground that could be invoked to set aside the election of the petitioner, if he had been returned under Rule 48, may be pleaded in answer to his prayer that he be declared duly elected. The practical result of that provision is that the first respondent can demonstrate that, had the appellant been returned under Rule 48, his election would have been vulnerable to being set aside for the breach of Rule 23; therefore the appellant should not be declared elected. The Tribunal, having been shown this, held that, by reason of the violation of Rule 23, the appellant was not entitled to be declared elected. The question then arose whether the court could go further and uphold the election of the first respondent under section 100(2)(c) on the basis that, if Rule 23 had not been broken, the otherwise wasted votes would have been credited to him. The appellant argued that such an approach would effectively accept votes that the legislature, in Rule 47(1), expressly requires to be rejected, and that this would be contrary to the scheme of the Act. The court found this contention well‑founded. Section 46 of the Act provides that when the counting of votes is completed, the Returning Officer shall forthwith declare the result of the election in the manner prescribed by the Act or the rules made thereunder. The rule referred to in this provision is Rule 48, which obliges the Returning Officer, after counting, to immediately declare the candidate or candidates who have received the largest number of valid votes as elected.

This rule makes it clear that no candidate may be declared elected on the basis of votes that are subject to rejection under Rule 47. The phrase “the result of the election” in section 100(1)(c) must, unless the surrounding context forces a different meaning, be understood in the same way as it is used in section 66, where it expressly refers to the result determined from the valid votes only. The conclusion is reinforced when the duties of a Returning Officer under Rule 47 are examined. Rule 47 obliges the Returning Officer to automatically reject certain classes of votes that do not conform to the prescribed rules; these are listed in Rule 47(1)(b) and (c). In other situations, rejection depends on the Officer’s judgment as to whether the conditions for acceptance have been met. For example, under Rule 47(1)(a) the Officer must decide whether the mark or writing on a ballot enables the elector to be identified; under Rule 47(1)(d) the Officer must determine whether the ballot paper is counterfeit or so mutilated that identification is impossible; and under Rule 47(2) the Officer must decide whether more than one ballot paper has been cast by the same voter.

Rule 47(4) is especially important. It states that “the decision of the Returning Officer as to the validity of a ballot paper… shall be final subject to any decision to the contrary given by a Tribunal on the trial of an election petition calling in question the election”. This provision creates a Tribunal that functions as an appellate court reviewing the Returning Officer’s decision. Consequently, the Tribunal’s jurisdiction must be co‑extensive with that of the Returning Officer and cannot exceed it. If the Returning Officer does not possess the power under Rule 47 to accept a vote that lacks the distinguishing mark prescribed by Rule 28 because the presiding officer mistakenly delivered the wrong ballot paper – a power the Officer does not claim and clearly does not have – then the Tribunal, when reviewing the decision under Rule 47(4), cannot acquire such a power either. The Tribunal therefore cannot accept a ballot paper that the Returning Officer was obligated to reject under Rule 47.

It has been argued with great insistence that the purpose of the Election Rules is to discover the majority’s intention in choosing a representative, and that when an elector’s clear intention to vote for a particular candidate is evident, that intention must be considered under section 100(2)(c) even if the vote is defective because of non‑compliance with formalities. However, when the law prescribes a specific manner in which intention must be expressed, that intention can be considered only if it is expressed in the required manner. An intention that is not properly expressed, in a court of law, holds the same status as an intention that is not expressed at all. The decision in Woodward v. Sarsons was cited to support the contention that an intention, though clear, could be taken into account despite formal defects.

The Court referred to a previous decision that addressed the question of whether the result of an election could be considered affected by votes that had been rendered invalid because of a mistake made by the polling officer. That earlier decision concerned section 13 of the Ballot Act of 1872, which provides that an election should not be declared invalid merely because the rules were not strictly complied with, if the Tribunal is satisfied that the election was conducted in accordance with the principles laid down in the Act and that any non‑compliance or mistake did not affect the result. The citation for that decision is Woodward v. Sarsons, (1) [1875] L.R. 10 C.P. 733. In the Woodward case, every ballot paper issued at polling station No 130 had been marked by the polling officer and consequently became invalid under section 2 of the Act. The unsuccessful candidate argued that the polling officer’s mistake made the whole election void, without raising the issue of whether the result itself had been altered. The Court rejected that argument, observing at page 750 that “Inasmuch, therefore, as no voter was prevented from voting, it follows that the errors of the presiding officers at the polling stations No 130 and No 125 did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void by the common law applicable to parliamentary elections.” The judgment clarified that the departure from the prescribed rules at those stations was not so fundamental as to mean the election had not been conducted in accordance with the principles of the Act.

Later authority was drawn from certain observations in Re South Newington Election Petition (1). In that case the Returning Officer had rejected a ballot paper because it lacked the required official mark. Upon examination, the Court found that the official stamp had in fact been applied, although imperfectly, and therefore the ballot should have been accepted. While the specific decision did not directly aid the respondent, the Court made a broader comment that “We think that, in a case where the voter is in no sense to blame, where he has intended to vote and has expressed his intention of voting in a particular way, and, so far as his part of the transaction is concerned, has done everything that he should, and the only defect raised as a matter of criticism of the ballot paper is some defect on the part of the official machinery by which the election is conducted, special consideration should (and, no doubt, would) be given, in order that the voter should not be disfranchised.” These observations emphasized that a voter who has clearly expressed his intention should not be disenfranchised because of a defect attributable to the election officials.

The observations cited earlier are not authority for the proposition that a ballot paper lacking any official mark could nonetheless be accepted on the basis of the voter’s intention. Conversely, the entire discussion makes sense only if we assume that a ballot paper with no mark at all must be rejected. Consequently, we must emphasize that by confirming the election of the first respondent on the basis of the three hundred and one votes that should have been rejected under Rule 47(1)(c), the Tribunal erred clearly. Counsel for the petitioner argues that this error amounts to a jurisdictional error. We cannot adopt that view because the Tribunal possessed jurisdiction to determine, by construing section 100(2)(c), whether it could examine a breach of Rule 23. If the Tribunal made a mistake, that mistake was in the exercise of its jurisdiction, not in the assumption of jurisdiction. Nevertheless, the error is evident on the face of the record and therefore warrants interference by certiorari. We have held that the election of the first respondent must be set aside. We have further held that even if the Returning Officer, after rejecting the three hundred and one ballot papers that lacked the correct marks, had declared the appellant elected, that election would also have to be declared void. The combined effect of section 97 and section 100(2)(c) is that no valid election exists. In these circumstances, the appropriate order is to quash the Tribunal’s decision and remove it by certiorari under article 226, and to set aside the election of the first respondent using the powers conferred by article 227. As a result of our decision, the Election Commission will conduct a fresh election. Accordingly, this appeal is allowed, the decisions of the High Court and the Tribunal are quashed, and the entire election is set aside. Each party shall bear its own costs throughout. Appeal allowed.