Brijendralal Gupta and Another vs Jwalaprasad and Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 151 of 1960

Decision Date: 22 April 1960

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In this matter the Supreme Court of India rendered its judgment on 22 April 1960 in the case of Brijendralal Gupta and another versus Jwalaprasad and others. The judgment was authored by Justice P B Gajendragadkar and the bench was composed of Justices P B Gajendragadkar, K N Wanchoo and K C Das Gupta. The case is reported in the All India Reporter at page 1049 of the 1960 volume and in the Supreme Court Reporter, third series, page 650 of the 1960 volume. The citations also include references to later reports such as D 1972 SC 580 (23) R 1975 SC1274 (2). The legal issues concerned the election‑nomination process, specifically the effect of the non‑mention of a candidate’s age on a nomination paper, whether such an omission amounted to a defect of a substantial character, and the circumstances under which a scrutiny enquiry is required. The provisions examined were sections 33 and 36 of the Representation of the People Act, 1951 (43 of 1951) and sections 16 and 19 of the Representation of the People Act, 1950 (43 of 1950). The headnote of the reported judgment summarised the factual backdrop and the contentions that were before the Court.

The factual matrix revealed that thirteen candidates had filed nomination papers for election to the Legislative Assembly of Madhya Pradesh. One candidate, identified only as U, had his nomination rejected because the nomination form did not contain a declaration of his age, which was a requirement prescribed in the form. After the polling, the appellants were declared elected. An unsuccessful candidate, referred to as J, filed an election petition seeking to set aside the election of the appellants on several grounds, including the alleged improper rejection of U’s nomination. The Election Tribunal dismissed the petition, observing that U had not approached the returning officer to remedy the omission, that the defect could not be cured at the stage of scrutiny, that the defect was of a substantial nature, and therefore the rejection was proper. On appeal, the High Court held that U had, at the time of scrutiny, offered to supply the omitted age information but the returning officer refused to permit it. The High Court further held that the returning officer was obligated to conduct a summary enquiry before rejecting a nomination, that the omission of age was not a defect of substantial character, and consequently set aside the election of the appellants.

The Supreme Court, however, reversed the High Court’s decision. The Court held that the failure to provide a declaration of age in the nomination paper constituted a defect of substantial character within the meaning of section 36(4) of the Representation of the People Act, 1951, and that the rejection of the nomination on that ground was proper. The Court relied upon a number of authorities, including Rattan Anmol Singh v Atma Ram, Pranlal Thakorlal Munshi v Indubhai Bhailabhai Amin, Rup Lal v Jugaraj Singh, Brij Sundar Sharma v Election Tribunal, Jaipur, Balasubyahmanyan v Election Tribunal, Vellore and Ramayan Shukla v Rajendra Prasad Singh. The Court distinguished the decisions in Durga Shankar Mehta v Thakur Raghuraj Singh and Karnail Singh v Election Tribunal, Hissar. The final holding affirmed that the omission regarding age was a substantial defect and that the returning officer’s rejection of the nomination complied with the statutory requirements.

In the case of Lohri Singh Ram Narain reported in A.I.R. 1958 Punj. 433, the Court disapproved the earlier view that a defect under section 36(4) of the Representation of the People Act, 1951, required a specific description. The Court held that the term “defect” expressly covered an omission to provide the details that the nomination form prescribed. The distinction drawn by English authorities between an “omission” and an “inaccurate description” was deemed to stem from the particular wording of English statutes and therefore did not apply under Indian law. Accordingly, the decisions in Queen v. Tugwell (1868) 3 Q.B. 704 and Baldwin v. Ellis (1929) 1 K.B. 273 were distinguished. Moreover, the Court explained that cases falling under section 36(2)(b) must be differentiated from those under section 36(2)(a). When a nomination paper failed to comply with the provisions of section 33 of the Act, the matter was classified under section 36(2)(b). In such a situation, the nomination could be either accepted or rejected depending on whether the defect was of a substantial or an unsubstantial character. The Court further clarified that, in these circumstances, the returning officer was not required to conduct any enquiry before making the determination.

The present matter arose on a special leave application to the Civil Appeal No. 151 of 1960, which challenged the judgment and order dated 23 November 1959 of the Madhya Pradesh High Court at Jabalpur in First Appeal No. 78 of 1959. That judgment itself stemmed from the decision of the Election Tribunal at Raigarh given on 12 May 1959 in Election Petition No. 76/1957. Counsel for the appellants presented their arguments, while counsel for respondent No. 1 represented the opposing side. The appeal was heard on 22 April 1960, and the judgment was delivered by Justice Gajendragadkar. The central question for determination was whether the failure of a candidate to state his age, as required by the prescribed nomination form, constituted a defect of substantial character under section 36(4) of the Representation of the People Act, 1951. The factual backdrop involved the general election to the Madhya Pradesh Legislative Assembly held on 25 February 1957 for the Mamendragarh Double Member Constituency. Thirteen individuals had offered themselves for either the general or the reserved seat, including the appellants—Mr Brijendralal Gupta and Thakur Raghubir Singh—who were the Congress candidates. Respondents 1 and 7 were nominated by the Praja Socialist Party, respondent 4 and a candidate named Sadhuram by the Jan Sangh, while the remaining candidates stood as independents. Respondent 5, identified as Udebhan Tiwari, omitted the mandatory declaration of his age in his nomination paper. This omission was discovered during the scrutiny of nominations on 1 February 1957, leading the returning officer to reject his nomination. Subsequently, respondent 6 withdrew his candidature, leaving eleven candidates to contest the election. After the polling and the counting of votes, the two appellants were declared duly elected to the general and reserved seats, respectively.

After the polling was completed, the two Congress candidates, appellant I and appellant II, were declared elected to the General and Reserved seats respectively. In response, respondent 1, Jwalaprasad, filed an election petition under section 81 of the Representation of the People Act, challenging the election of the appellants on several grounds, one of which concerned the alleged improper rejection of respondent 5’s nomination. He argued that the appellants’ election should be declared void and that he should be recognized as duly elected. The petition was referred for trial to the Election Tribunal at Raigarh. During the proceedings the Tribunal framed forty‑nine issues based on the parties’ contentions, but the present appeal concerned only three issues that related to respondent 5’s nomination. The first issue was whether respondent 5’s nomination paper had been improperly rejected because it omitted the required entry of his age. The second issue examined whether, at the time of scrutiny, respondent 5 was personally present and had informed the returning officer that his age exceeded twenty‑five years, contending that the omission was merely accidental. The third issue considered, if the foregoing were true, whether the rejection of the nomination rendered the entire election void ab initio under section 100(1)(c) of the Act. The Tribunal held that respondent 5 had made no attempt to rectify the defect, that the returning officer was not legally entitled to permit a remedy at the stage of scrutiny, and that the omission constituted a substantial defect, justifying the rejection of the nomination. Consequently, the Tribunal dismissed the election petition. Respondent 1 then appealed the Tribunal’s decision to the High Court of Madhya Pradesh at Jabalpur under section 116A of the Act. The High Court allowed the appeal, finding that respondent 5 had offered to supply his age at the time of scrutiny, but the returning officer refused to allow the correction. The High Court held that the returning officer was required to make a summary enquiry before rejecting the nomination and that the failure to mention the age was not a substantial defect. Accordingly, the High Court set aside the appellants’ election pursuant to section 100(1)(c) of the Act. The appellants then obtained special leave to appeal this High Court judgment to the Supreme Court. Counsel for the appellants sought to contest the High Court’s finding that respondent 5 had offered to correct his nomination by presenting evidence of his age and that the returning officer had denied him an opportunity to do so. While the Tribunal had previously ruled in favor of the appellants on this factual question, the counsel argued that the High Court’s broad jurisdiction under section 116A permitted it to review not only questions of law but also factual determinations, and that the High Court should not have interfered with the Tribunal’s factual findings. The Supreme Court considered these arguments in determining whether the defect in respondent 5’s nomination was of substantial character and whether the High Court’s decision should be upheld.

The Court noted that the Tribunal had found in favour of the appellants on the issue of whether respondent 5 was given an opportunity to correct the omission in his nomination paper. However, the Court held that the High Court was entitled to examine the correctness and propriety of that finding because the jurisdiction conferred on the High Court by section 116A of the Act is sufficiently wide and is not limited to questions of law alone. It was submitted that the matter was a question of fact that depended on the assessment of oral evidence presented by the parties, and that consequently the High Court should not have interfered with the Tribunal’s conclusion on that point. The Court was not persuaded by that submission. Accordingly, it decided to consider the appeal on the basis that respondent 5 had indeed sought to rectify the omission but had been denied that chance by the returning officer.

The Court explained that if the defect in respondent 5’s nomination paper were held not to be of a substantial character, then the High Court’s decision would be upheld. Conversely, if the defect were deemed a substantial defect, the rejection of the nomination paper would be proper and the fact that respondent 5 was not permitted to remedy the omission would have no legal effect. Thus, the sole issue requiring determination was whether the omission in question amounted to a substantial defect under clause (4) of section 36 of the Act.

Before addressing that issue, the Court found it necessary to refer to sections 33, 34 and 36 of the Act. Section 33 governs the presentation of nomination papers and sets out the requirements for a valid nomination. Sub‑section (1) of section 33 mandates that, on or before the date appointed under clause (a) of Form 30, each candidate, either personally or through his proposer, must deliver the nomination paper between eleven o’clock in the forenoon and three o’clock in the afternoon to the returning officer at the place specified in the notice issued under section 31. The nomination paper must be in the prescribed form and must bear the signatures of both the candidate and an elector of the constituency who acts as the proposer.

Sub‑section (2) of section 33 provides that a candidate shall not be deemed qualified to be chosen for a reserved seat unless the nomination paper contains the declaration prescribed for that purpose. Sub‑section (3) deals with a candidate who has previously held any office referred to in clause (f) of section 71 and who has been dismissed, where five years have not yet elapsed since the dismissal; such a candidate must attach to his nomination paper the certificate specified in that provision. Sub‑section (4) requires the returning officer, upon receipt of a nomination paper, to verify that the names and electoral‑roll numbers of the candidate and his proposer as entered in the paper correspond with those recorded in the electoral rolls.

The Court observed that the returning officer was required to verify that the names and electoral‑roll numbers of both the candidate and the proposer appearing on the nomination paper were identical to those recorded in the electoral rolls. The proviso to this requirement permitted the officer to allow correction of any clerical or technical mistake concerning the names or numbers, and further empowered him to disregard any clerical or printing error in the entry where such an error did not affect the substance of the information. The Court noted that it was not necessary to consider the remaining two sub‑sections of section thirty‑three for the purpose of the present decision. Section thirty‑four, dealing with the security deposit, was then described. Under that provision a person could not be deemed to be duly nominated for election from a constituency unless he deposited, or caused to be deposited, the amounts prescribed in clauses (a), (b) and (c) of that section. The Court then turned to section thirty‑six, which governs the scrutiny of nominations. That section authorises the returning officer to conduct an enquiry, prescribes the procedure to be followed in such an enquiry, requires the officer to endorse his decisions on the points raised during scrutiny, and obliges him to prepare a list of candidates whose nominations are found to be valid and to affix that list to his notice board.

According to subsection one of section thirty‑six, on the date fixed for the scrutiny of nominations under section thirty, the candidates and the other persons specified therein were entitled to attend the scrutiny at the time and place appointed by the returning officer, who was required to provide them with reasonable facilities for examining all nomination papers that had been delivered within the time and in the manner prescribed by section thirty‑three. Subsection two dealt with the examination of the papers by the returning officer, stating that the officer must decide every objection that may be made to any nomination and may, either on the basis of such an objection or on his own motion after any summary enquiry he deemed necessary, reject a nomination on any of the following grounds: (a) the candidate is not qualified or is disqualified for being chosen to fill the seat under any applicable provisions of articles eighty‑four, one hundred‑two, one hundred‑seventy‑three, one ninety‑one, or Part eleven of the Constitution; (b) there has been a failure to comply with any provision of section thirty‑three or section thirty‑four; or (c) the signature of the candidate or the proposer on the nomination paper is not genuine. Subsection four expressly prohibited the returning officer from rejecting any nomination paper on the basis of any defect that was not of a substantial character. Subsection five prescribed the procedural steps to be followed during scrutiny, while subsection six required the officer to endorse each nomination paper with his decision to accept or reject it and, in case of rejection, to record a brief written statement of the reasons for such rejection. Finally, subsection seven provided that, for the purpose of this section, a certified copy of an entry in the electoral roll then in force for a constituency would be taken as conclusive evidence that the person named in that entry was an elector for that constituency, unless it was proved that he was subject to a disqualification mentioned in section sixteen of the Representation of the People Act, 1950.

It was stated that a certified copy of an entry in the electoral roll for the constituency in force at the relevant time was to be regarded as conclusive proof that the person named in that entry was an elector for that constituency, unless it could be shown that the person was subject to a disqualification specified in section 16 of the Representation of the People Act, 1950 (43 of 1950). Section 33 required that a nomination paper be filled out in the prescribed form and signed both by the candidate and by an elector of the constituency acting as proposer. The prescribed form for this purpose was Form No. 2B, and the relevant portion of that form read as follows: “Form 2B. Nomination Paper (See rule 4) Election to the Legislative Assembly of ……….(State) (To be filled in by the proposer) I hereby nominate ……………………. as a candidate for election from the ……………… Assembly Constituency. 1. Full name of proposer ……………………. 2. Electoral roll number of proposer ……………………. 3. Name of candidate’s father/husband ……………………. 4. Full postal address of candidate ……………………. 5. Electoral roll number of candidate ……………………. Date ……………………. Signature of proposer. (To be filled by the candidate) 1, the above‑mentioned candidate, assent to this nomination and hereby declare – (a) that I have completed ………………. years of age; (b) that the symbols I have chosen are in order of preference (i) ………………………….. (ii) ………………………….. and (iii) ………………………….. Date ……………………. Signature of candidate. Strike out one of the alternatives as necessary.” Both parties agreed that the first part of the nomination paper, which had to be completed by the proposer, had been filled in correctly, and that the second part had been duly signed by the candidate. However, the candidate had failed to state his age as required by clause (a). When the returning officer observed this omission, he issued an order rejecting the nomination of respondent 5. In the brief statement of reasons recorded by the returning officer, it was held that the failure of respondent 5 to declare his age could not be regarded as a mere clerical or technical mistake, but constituted a defect of a substantial nature because the age declaration was necessary to determine whether the candidate satisfied the qualification prescribed by Article 173 of the Constitution. The returning officer further noted that he had taken the objection suo moto and therefore rejected the nomination paper of respondent 5. Consequently, there was no dispute that respondent 5 had omitted to specify his age before signing the nomination paper, and that, in that respect, the nomination paper had not been completed in the prescribed form. The issue that required determination was whether the omission to state his age amounted to a defect, and if so, whether it qualified as a defect of a substantial character under section 36(4) of the Act. The appellants conceded that the omission undeniably constituted a failure to comply with the provisions of section 33, and therefore attracted the provisions of section 36(2)(b) of the Act, but they contended that the omission did not rise to the level of a defect under section 36(4), let alone a defect of a substantial character.

The appellants contended that the failure to state the age in the nomination paper did not give rise to a defect under section 36(4) of the Act, and that, in any event, it could not be characterised as a defect of substantial character. Their position was that section 36(4) was intended to address only those instances of non‑compliance with section 33 which could properly be described as defects, and that an omission of the sort at issue was not a defect within the meaning of the provision, so that the subsection could not be invoked. To support this line of argument they relied upon two decisions of English courts. In The Queen v. Tugwell the Chief Justice Cockburn held that nine votes whose validity was challenged had to be struck down because the voting papers did not comply with section 32 of the Municipal Corporation Act, which required the inclusion of a description of the candidate. The papers in that case contained only the candidate’s Christian name, surname and residence and omitted the statutory description. The Chief Justice rejected the suggestion that the omission could be treated as an inaccurate description that might be cured by section 142, which permits an inaccurate description so long as it is commonly understood. He observed that the situation involved a total omission of a required description, not an inaccurate one, and therefore section 142 was inapplicable. Judges Lush and Hannen appeared to concur with the Chief Justice, albeit with some reservations.

The decision in Baldwin v. Ellis was cited to reinforce the same principle. In that case the nominee’s failure to mention the parish for which he claimed the qualification of a local‑government elector was held to be non‑compliance with rule 4 of the Rural District Councillors Election Order, 1898. The court determined that this omission could not be remedied by section 13 of the Ballot Act, 1872, because that provision applied only to situations where a nomination paper had been wrongly admitted, not where a nomination paper had been properly rejected for deficiency. The judgment concluded that the omission could not be characterised as an inaccurate description within rule 13 of the 1898 Order; rather, it was a clear breach of the explicit requirement of rule 4 and, consequently, could not be cured by rule 33. Both English authorities thus examined whether the omission amounted to an inaccurate description and, in each instance, held that it was a plain non‑compliance with a mandatory statutory requirement, rejecting any broader argument that an omission could never be treated as a defect.

In this case, the Court observed that the question of whether a particular omission amounted to an inaccurate description was decided by referring to the specific provision of the statute, and therefore the broad contention that an omission could never be treated as a defect could not be sustained. The Court also noted that Halsbury had interpreted these decisions in the same manner.3 The Court then examined the ordinary meaning of the word “defect,” which is defined as a lack or absence of something essential to completeness. By that definition, the failure to specify the candidate’s age would constitute a defect under section 36(4). The term “defect” can also mean a flaw, fault, or imperfection, and whether an omission falls within that meaning depends on the context in which the word is used. Considering the context of the nomination paper, the Court found it unreasonable to hold that “defect” under section 36(4) excludes every case of omission of details prescribed by the statute. Consequently, the Court rejected the appellant’s argument that the omission in question was not a defect within the meaning of section 36(4).The Court then turned to the next issue: whether, in the presence of such an omission, the returning officer was obliged to conduct an enquiry under section 36(2) of the Act. The High Court had held that the returning officer should have carried out an enquiry under section 36(2)(a) and determined whether respondent 5 was eligible to stand for election. The Court disagreed with that conclusion. It held that if respondent 5’s nomination paper failed to comply with the requirements of section 33, the matter fell squarely within section 36(2)(b). The only question then was whether the defect arising from the failure to satisfy section 33 was of a substantial character. If the defect was not substantial, the returning officer could not reject the nomination on that ground; if the defect was substantial, the returning officer was required to reject the nomination. This is the effect of reading sections 36(2)(b) and 36(4) together. An enquiry under section 36(2)(a) might be appropriate, for example, where the nomination paper shows the candidate’s age as above twenty‑five but an objection is raised that the candidate is actually below twenty‑five and therefore ineligible under Article 173 of the Constitution. In such a scenario the nomination complies with section 33 and does not fall under section 36(2)(b); nevertheless, the validity of the nomination can be challenged on the ground of non‑compliance with Article 173. The Court therefore emphasized that cases requiring an enquiry under section 36(2)(a) must be distinguished from cases that fall under section 36(2)(b). In the latter class, once non‑compliance with section 33 is established, there is no scope for an enquiry under section 36(2)(a). After the alleged non‑compliance is proved, the defective nomination must be either accepted or rejected depending on whether the defect is unsubstantial or substantial. Accordingly, the Court held that it was incorrect to require the returning officer to hold an enquiry under section 36(2)(a) after he had already determined that the omission meant the nomination paper did not satisfy section 33. Non‑compliance with section 33 itself justified rejection of the nomination, provided that the defect was of a substantial character. This reasoning led the Court to consider the next question concerning the nature of the defect.

In this matter the Court explained that objections founded on the ground that Article 173 of the Constitution had not been complied with must be treated differently from objections that fall under section 36(2)(b) of the Representation of the People Act. In the latter category, once it is established that the nomination paper fails to satisfy the requirements of section 33, there is no authority for the returning officer to conduct an enquiry under section 36(2)(a). After the alleged non‑compliance is proved, the decision to accept or reject the nomination depends solely on whether the defect is of an unsubstantial or of a substantial character. Consequently, it was held to be incorrect for the returning officer, even after being satisfied that the omission of the candidate’s age indicated non‑compliance with section 33, to proceed to an enquiry under section 36(2)(a). The mere failure to comply with section 33 justifies rejection of the nomination paper, provided that the defect arising from that non‑compliance is of a substantial character. The Court then turned to the question of whether the failure to state the age in the nomination paper amounts to a substantial defect under section 36(4). The Court observed that the candidate’s age is as important as his identity; the prescribed nomination form accords special significance to the declaration of age. Just as the form requires the full name of the candidate, his electoral‑roll number and his signature, it also mandates that the candidate declare his age, and this declaration is placed above the signature and is treated as the candidate’s own statement. Given this requirement, the Court found it difficult to conclude that the omission of the age does not constitute a substantial defect. The eligibility of a person to stand as a candidate, under Article 173, depends, among other criteria, on having attained the age of twenty‑five years, an issue of considerable importance, and the form reflects that importance by obligating the candidate to make a declaration of his age. It would be unreasonable to treat the failure to make a declaration on such a vital matter as merely an unsubstantial defect. The Court further noted that the declaration concerning symbols required by the proviso to Rule 5 is given a subsidiary status, and that any non‑compliance with sub‑rule (2) of Rule 5 shall not be deemed a defect of a substantial character. This positioning underscores that, unlike the omission of age, non‑compliance with the symbol declaration is expressly excluded from being treated as a substantial defect.

The Court observed that the proviso attached to rule 5 indicates that a failure to comply with the requirement to declare symbols, as stipulated in rule 5 sub‑rule (2), would ordinarily be regarded as a defect of a substantial character. Because the proviso expressly states otherwise, it demonstrates that such a failure is intended to be treated as a substantial defect. By the same reasoning, the Court noted that the omission of the candidate’s age on the nomination form cannot be classified as a defect of an unsubstantial nature.

The respondents contended that the returning officer should not have rejected the nomination papers on a merely technical ground. They argued that the officer could simply have consulted the electoral roll to verify that respondent 5, whose age was recorded as forty‑eight, was duly qualified to stand for election. Accordingly, they maintained that the failure to state the age on the nomination form amounted only to a technical breach of section 33. The Court rejected this argument, reiterating that where there is non‑compliance with section 33 that triggers the provisions of section 36(2)(b), there is no occasion to conduct an inquiry under section 36(2)(a). The sole issue in such situations is whether the defect is substantial. Consequently, the fact that the returning officer could have readily confirmed the candidate’s age was deemed irrelevant to the construction of section 36(4).

Turning to the presumption created by section 36(7) of the Act, the Court explained that a certified copy of an entry in the electoral roll is deemed conclusive evidence that the person named in that entry is an elector for the relevant constituency. However, this presumption operates only for the purposes of section 36 and is expressly subject to the final clause of that subsection, which allows the presumption to be displaced if it is proved that the person is subject to any disqualification listed in section 16 of the 1950 Act. The Court found the use of the term “conclusive” to describe such evidence to be technically inappropriate, because the presumption arising from a certified copy is not absolute. Moreover, the Court highlighted that the original wording, which declared the entry to be conclusive evidence of the elector’s right, was later amended by Act 27 of 1956, thereby limiting the scope of the presumption.

In this case, the Court observed that the Legislature had thought the original presumption created by the language of section 36(7) was excessively broad, and therefore amended it so that the presumption became merely prima facie and rebuttable, limited solely to the person’s capacity to be treated as an elector and nothing beyond that, unless evidence proved a disqualification under section 16. Section 16, as cited, listed three categories of disqualification: a person who was not a citizen of India; a person who was of unsound mind and had been so declared by a competent court; and a person who, at the time, was disqualified from voting because of any law relating to corrupt or illegal practices or other electoral offences. Consequently, the Court held that a certified copy of the relevant electoral‑roll entry would prima facie indicate that the individual was not subject to any of those disqualifications, but that this presumption could be overturned by contrary evidence. The Court further explained that the rebuttable presumption under section 36(7) concerned only the status of the person as an elector.

The Court then turned to the definition of “elector” contained in section 2, sub‑section 1(e) of the Act, which described an elector as a person whose name appeared in the electoral roll for the constituency in force and who was not subject to any disqualification specified in section 16. The Court linked this definition to the conditions for registration set out in section 19, which required that, on the qualifying date, a person be at least twenty‑one years of age and ordinarily resident in the constituency. Accordingly, the Court noted that the presumption raised by section 36(7) could only imply, on its face, that the individual satisfied the twenty‑one‑year age requirement and the residency requirement, but it could not satisfy the higher age requirement of twenty‑five years prescribed by article 173 of the Constitution for membership of a State Legislature. The Court emphasized that article 173 required a candidate to be a citizen of India, to be at least twenty‑five years old for Legislative Assembly seats, and to meet any other qualifications prescribed by law. Hence, the Court concluded that the certified copy of the electoral roll could not, by itself, demonstrate compliance with the constitutional age qualification, and that the nomination form correctly required the candidate to declare his age expressly.

In this case the Court observed that the presumption created by section 36(7) of the Act was insufficient to support a claim of validity for the nomination paper because that presumption merely indicated that the person concerned had attained the age of twenty‑one years. The Court clarified that individuals who are between twenty‑one and twenty‑five years of age are indeed entered in the electoral roll and therefore qualify as electors, provided they satisfy any other qualifications, yet they are not entitled to contest a seat in a State Legislature. Consequently, it could not be assumed that a reference to a certified copy of the electoral roll would in every instance conclusively demonstrate that the candidate’s age satisfied the requirement laid down in article 173 of the Constitution, which demands a minimum age of twenty‑five years for election to a State Legislature. In other words, the requirement of having completed twenty‑five years of age lies outside the scope of the presumption under section 36(7), and this explains why the prescribed nomination form obliges the candidate, by signing it, to make a declaration concerning his age. The Court held that this declaration is a matter of substantial importance and that non‑compliance with this requirement could not be treated as a defect of an unsubstantial character.

The Court then turned to the authorities cited by counsel for both sides. In Rattan Anmol Singh v Atma Ram, reported in 1955 1 SCR 481, the Supreme Court held that the attestation required from proposers and seconders who are unable to write their own names is not a merely technical or trivial matter, and that failure to comply with that requirement amounts to a defect of a substantial character. The appellants argued, with some force, that this decision supports their contention that, analogous to the attestation required from an illiterate proposer or seconder, the declaration of the candidate’s age is likewise a matter of substantial importance, and that any failure to satisfy the form‑prescribed requirement cannot be treated as a non‑substantial defect. The Court also noted the decision of the Election Tribunal, Baroda, in Pranlal Thakorlal Munshi v Indubhai Bhailabhai Amin, where the Tribunal held that the omission of the candidate’s age in the nomination paper constituted a defect of a substantial character and that the nomination was properly rejected on that ground. The appellants relied on this decision as well.

Further, the appellants referred to several judgments wherein the omission of the electoral‑roll number or other particulars was examined, and it was held that such omissions amounted to a substantial defect under section 36(4) of the Act. These judgments included Rup Lal v Jugraj Singh, Brij Sundar Sharma v Election Tribunal Jaipur, Balasubrahmanyan v Election Tribunal Vellore, and Ramayan Shukla v Rajendra Prasad Singh. By parity of reasoning, the appellants contended that the failure to mention the candidate’s age was unmistakably a substantial defect. The Court indicated that it was unnecessary to delve into the merits of these cited decisions, as the reasoning already established that the omission of the age declaration was a defect of a substantial character.

In this case the appellants argued, following the same line of reasoning as earlier authorities, that the omission of the candidate’s age from the nomination paper constituted a clear and substantial defect. The Court indicated that it was not necessary to examine the merits of the earlier decisions cited by the appellants. The respondents, however, relied on a decision of this Court in Durga Shankar Mehta v. Thakur Raghuraj Singh (6). The Court observed that the judgment of the High Court that is under appeal appeared to be influenced by comments made by Mukherjea, J., when he dealt with the Durga Shankar case (6). In that earlier case the election of Vasant Rao, identified as respondent 2, had been challenged before the Election Tribunal on the ground that he was ineligible because he was under twenty‑five years of age at the relevant time. Nevertheless, the returning officer had not received any objection to the nomination paper of respondent 2, and the officer had formally accepted that nomination. The question that came before this Court, as recorded in the citations (1) (1952) 1 E.L.R. 182; (2) (1958) 15 E.L.R. 484; (3) (1956) 12 E.L.R. 216; (4) (1953) 7 E.L.R. 496; (5) (1958) 16 E.L.R. 491; (6) [1955] S.C.R. 267, was whether the acceptance of respondent 2’s nomination paper was improper. This Court held that acceptance would be improper only if the lack of qualification was evident on the electoral roll or on the face of the nomination paper and the returning officer overlooked it, or if an objection had been raised, an enquiry conducted, and the officer nonetheless came to an erroneous conclusion based on the material before him. Since neither of those situations occurred, the Court concluded that the acceptance was proper. The Court did note, however, that the validity of respondent 2’s election could be challenged under section 100(2)(c) of the Act, but that point was not before this Court in the present appeal. Consequently, the Court found that in Durga Shankar (1) it had not been required to consider the scope and effect of sections 36(2Xb) and 36(4) of the Act, and therefore the observations cited by the respondents to support a claim that an enquiry should have been held in the present matter were not applicable. Those observations must be read, with due respect, in the context of the specific dispute that was before the Court in that earlier case. The respondents also relied on the decision of this Court in Pratap Singh v. Shri Krishna Gupta (2). In that decision this Court unequivocally stated that courts should not adopt a merely technical approach when dealing with election matters.

In the judgment the Court emphasized that the substance of a nomination must be decisive and must prevail over mere formalities. While considering this principle, the Court recalled the issues that were decided in the earlier case. In that case the candidate had failed to state his occupation as required by Rule 9(1)(i), and that omission formed the basis for challenging the validity of his nomination. To resolve the question, the Court examined Section 23 of the C. P. and Berar Municipalities Act, 2 of 1922, which declares that any act or proceeding taken under the Act cannot be questioned on the ground of a defect or irregularity unless such defect affects the merits of the case. Accordingly, the Court’s short‑faced task was to determine whether the defect in the nomination form impinged upon the merits of the election. The Court concluded that there was no doubt that the failure to mention occupation could possibly affect the merits of the case. On that footing, the Court expressed disapproval of the technical approach adopted by the High Court in adjudicating the validity of the impugned nomination. The judgment also noted that, even in that earlier decision, the Court had referred with approval to its prior ruling in Rattan Ammol Singh.

The respondents also relied on the decision of this Court in Karnail Singh v. Election Tribunal, Hissar. In that matter the nomination paper of Sher Singh was rejected because column 8 of the form had not been duly filled, specifically the name of the sub‑division was omitted. However, the evidence showed that there was no real difficulty in identifying the candidate, and the candidate himself pointed out his name as it appeared in the electoral roll to the returning officer. The Court held that the defect was purely technical and that the Tribunal was correct in finding that the nomination paper had been improperly rejected. The Court observed that this decision did not assist the respondents in the present case. It further pointed out that the omission of a declaration of age in the present nomination is an omission of a substantive requirement prescribed by the form, and therefore it cannot be compared with the technical omission considered in Karnail Singh. The respondents also cited another decision, Pt. Charanjit Lal Ram Sarup v. Lahri Singh Ram Narain, in which the Punjab High Court dealt with a nomination paper that had been rejected for reasons extending beyond the failure to state the age.

In the Punjab High Court case the nomination paper was rejected not only because the candidate failed to state his age, but also because no evidence was presented by the candidate, his representatives or agents to demonstrate that he had attained the required twenty‑five years of age, even though the returning officer had directed that such evidence should be produced. The Election Tribunal observed that, on the material placed before it, it could not determine with any certainty whether, at the time the nomination was filed, Mr. Pirthi – the candidate concerned (1) [1955) 1 S.C.R. 481. (2) (1954) 10 E.L.R. 189. (3) A.I.R, 1958 Punj. 433. – was above or below twenty‑five years of age. Consequently the Tribunal concluded that the rejection of the nomination paper could not be said to be improper. One of the arguments before the Punjab High Court was that the failure to state the age did not constitute a defect of a substantial character. The High Court, however, declined to make a definitive finding on that issue because, in the matter before it, the omission was coupled with the absence of any material before the returning officer that could have remedied the omission. It should be noted that, on the facts established in that case, the election petition ought to have been considered under section 36(2)(b) and section 36(4) of the Representation of the People Act, but the High Court apparently treated it as falling under section 36(2)(a), which is not the correct legal position. Moreover, certain observations in the High Court’s judgment suggested an inclination to view the failure to declare age as a non‑substantial defect. Those observations, however, do not correctly reflect the operation of sections 36(2)(b) and 36(4) of the Act. In the result, the appellate court allowed the appeal, set aside the decision of the Punjab High Court, restored the Tribunal’s decision and awarded costs throughout.