Dr. Anup Singh vs Shri Abdul Ghani And Another

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

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 141 and 142 of 1964

Decision Date: 14 August 1964

Coram: K.N. Wanchoo, P.B. Gajendragadkar, M. Hidayatullah, J.C. Shah, N. Rajagopala Ayyangar

In this matter the petitioner, Dr. Anup Singh, challenged the election of the respondent, Shri Abdul Ghani, and another individual to the Council of States. The case was decided by the Supreme Court of India on 14 August 1964. The judgment was authored by Justice K.N. Wanchoo, who sat with Chief Justice P.B. Gajendragadkar, Justice M. Hidayatullah, Justice J.C. Shah, and Justice N. Rajagopala Ayyangar. The parties are identified respectively as the petitioner and the respondents. The decision is reported in the 1965 volume of the All India Reporter at page 815 and also in the 1965 Supreme Court Reports, first series, page 38. The citation includes a reference for further research, namely RF 1974 SC1185 (16). The statutory framework examined in the case involved the Representation of the People Act of 1951, specifically sections 81(3) and 90(3), and the Conduct of Election Rules of 1961, rule 73(2)(d), which defines “any mark or writing by which the elector can be identified.” The procedural posture indicates that the Election Tribunal had earlier allowed a petition contesting the appellant’s election and declared the respondent elected, the High Court then dismissed the appellant’s appeal, and the appellant thereafter appealed to this Court.

The appellant argued before the Court that the High Court erred in two respects: first, by failing to reject the election petition under section 90(3) of the Representation of the People Act for non‑compliance with section 81(3); and second, by improperly rejecting a ballot that was in his favour. The Court held that the petition could not be dismissed under section 90(3) because there was substantial compliance with section 81(3), following the precedent set in Ch. Subba Rao v. Member, Election Tribunal, AIR 1964 SC 1027. Regarding the ballot paper, the Court observed that the elector’s writing on the ballot provided sufficient evidence of identity that could lead to identification, and therefore the ballot was correctly rejected. The Court explained that the phrase “any mark or writing by which the elector can be identified” in rule 73(2)(d) requires more than a mere possibility of identification; it does not demand actual proof of identification before a vote may be invalidated. It is sufficient that there be a reasonable probability of identification by the mark or writing, excluding those permitted by rule 37‑A, and where such probability exists the ballot must be invalidated. The Court’s reasoning was supported by numerous authorities, including Woodward v. Sarsons (1875), Isaacson v. Durant (1886), H. L. Lawson v. Colonel Chester Master (1893), Henry Edward Duke v. Richard Harold (1911), Lewis v. Shepperdson (1948), Reginald Pole Blundell v. Joseph Vardon (1907), Kennedy v. Palmer (1907), and Kean v. Kerby (1920). The judgment was rendered under civil appellate jurisdiction for Civil Appeals Nos. 141 and 142 of 1964, arising from the Punjab High Court’s order dated 30 May 1962 in FAO Nos. 3/E and 4/E of 1962.

Counsel for the appellants were G. S. Pathak, Hardev Singh, Y. Kumar, Mohinder Narain, S. N. Andley and Rameshwar Nath. Counsel for respondent No. 1 in Civil Appeal No. 141 of 1964 and respondent No. 2 in Civil Appeal No. 142 of 1964 were T. R. Bhasin, Rajinder Sachar and S. C. Malik. The judgment was delivered by Justice Wanchoo. The matters before the Court were appeals from certificates granted by the Punjab High Court and both appeals arose out of the same election to the Council of States by the Punjab Legislative Assembly, although they were founded on two separate election petitions filed by two different persons who contested the election of the same candidate.

The election to the Council of States was held by the Punjab Legislative Assembly in March 1962. Three seats were to be filled and a number of candidates contested those seats. The present appeals focus on two of those candidates: Dr. Anup Singh, who was the appellant, and Shri Abdul Ghani, who was the respondent. The other two seats were filled by Shri Chaman Lal and Shri Surjit Singh. While the elections of Shri Chaman Lal and Shri Surjit Singh had originally been challenged, those challenges were no longer in dispute at the time of these proceedings.

Under the proportional‑representation system, the first‑preference votes were counted and Dr. Anup Singh received thirty‑six votes whereas Shri Abdul Ghani received thirty‑five votes. After the transfer of preferences, Dr. Anup Singh’s total became thirty‑six minus three votes and Shri Abdul Ghani’s total became thirty‑five votes. As a result, Dr. Anup Singh was declared elected together with the two already‑uncontested candidates. Following this declaration, two election petitions were filed: one by Shri Abdul Ghani and the other by Shri Lachhman Singh.

Initially, the election of all three successful candidates was challenged on a wide range of grounds. Ultimately, however, the litigation was narrowed to focus solely on the election of Dr. Anup Singh and only on a single ground. The petitioner alleged that certain votes cast for Shri Abdul Ghani had been incorrectly rejected and that certain votes cast for Dr. Anup Singh had been incorrectly accepted. The appellant responded on two principal bases. First, it argued that the petitions should be dismissed under section 90(3) of the Representation of the People Act, No. 43 of 1951, because they failed to comply with the procedural requirements of section 81(3). Second, it contended that there was no improper rejection of Shri Abdul Ghani’s votes and no improper acceptance of the appellant’s votes.

These two issues constituted the principal questions before the Tribunal. On the question of procedural compliance, the Tribunal held that the petitions were maintainable because there was substantial compliance with section 81(3) of the Act. On the substantive question concerning the eight votes under dispute, the Tribunal found that three of the votes in favour of Shri Abdul Ghani had been correctly rejected. The Tribunal’s decision on both the procedural and substantive points was affirmed by the Punjab High Court, and that decision now formed the basis of the appeals before this Court.

In the matter that reached this Court, five ballots had been recorded in favor of Dr Anup Singh. The appellant conceded that one of those five ballots was invalid. Of the remaining four ballots, the Tribunal, applying the decision in Pala Singh v Natha Singh, held two to be valid and two to be invalid. After reaching those conclusions, the Tribunal recomputed the totals and declared Shri Abdul Ghani elected, because after redistribution Dr Anup Singh was found to have obtained 333 votes while Abdul Ghani obtained 35 votes. The appellant then filed two separate appeals before the High Court, relying on two principal submissions: first, that the election petitions ought to have been dismissed under section 90(3) of the Representation of the People Act because they allegedly failed to satisfy the requirements of section 81(3); and second, that the Tribunal had erred in rejecting two ballot papers. The High Court examined those contentions and concluded that the petitions had substantially complied with section 81(3), and therefore could not be dismissed under section 90(3). It further held that one of the two ballot papers that the Tribunal had declared invalid was in fact valid, while the other ballot paper was correctly rejected. Consequently, the High Court determined that Dr Anup Singh’s final tally stood at 34.3 votes and Shri Abdul Ghani’s at 35 votes, leading the Court to dismiss both appeals. Afterward, two petitions for certificates were filed and granted, bringing the dispute to the present Court.

The appellant raised two points before this Court. The first point asserted that the High Court erred in refusing to dismiss the election petitions under section 90(3) because the petitions allegedly did not comply with the provisions of section 81(3). The second point argued that the High Court made a mistake in invalidating one of the votes, and that had that vote not been rejected, Dr Anup Singh would have obtained 35 – 3 votes while Shri Abdul Ghani would have obtained 35 votes, which would have caused the election petitions to fail. Accordingly, the Court needed to examine the validity of that single vote. Regarding the first point, the contention centered on the requirement of section 81(3), which mandates that every election petition be accompanied by as many copies as there are respondents, plus one extra copy for the Election Commission, and that each copy be attested by the petitioner’s own signature as a true copy of the petition. In the case reported in LXIV (1962) P.L.R. 1110, the requisite number of copies were filed, each bearing the petitioner’s signature. Those copies were carbon copies of the original and were not contested as true copies, although the specific attestation stating “true copy” was absent on the copies.

In this matter the appellant argued that the copies of the election petition did not satisfy the requirement of section 81(3). That provision mandates that every election petition be filed with as many copies as there are respondents, plus one additional copy for the Election Commission, and that each copy be attested by the petitioner’s own signature as a true copy of the petition. The appellant pointed out that, while the copies were indeed filed and bore the petitioner’s signature, the specific attestation clause— the words “true copy” placed above the signature— was absent. Consequently, the appellant submitted that compliance with section 81(3) was lacking and that, under section 90(3), the Tribunal was bound to dismiss the petition because it did not meet the statutory requirement. The appellant further maintained that the penalty for non‑compliance made the provision mandatory and that the absence of the attestation wording required the petition’s rejection.

The Court examined a previous decision, Ch. Subba Rao v. Member, Election Tribunal (1), where a similar issue arose. In that case the copies also carried the petitioner’s signature but omitted the words “true copy” above the signature. The Court held that the presence of the original signature on the copy was sufficient to demonstrate that the copy was attested as a true copy, even though the specific wording was missing. Accordingly, the Court concluded that there was substantial compliance with section 81(3) and that the petition could not be dismissed under section 90(3). Applying that precedent to the present facts, the Court found that the petitions in the instant case likewise achieved substantial compliance with section 81(3), and therefore they could not be dismissed on the ground of non‑compliance.

The principal issue then before the Court concerned the validity of one particular ballot paper marked Ex. P‑76. The Tribunal’s judgment indicated an inclination to hold that this ballot paper was not invalid. However, following the High Court’s decision in Pala Singh’s case (2), the Tribunal subsequently declared the ballot paper invalid. When the matter was taken up by the High Court, a Full Bench of three Judges was constituted to review the correctness of the Pala Singh judgment (3). It should be noted that the judgment in Pala Singh concerned a mark on the ballot paper, not any writing upon it, and the High Court in that case had taken the view that any mark would render the ballot paper invalid under rule 73(2)(d). The High Court later reconsidered Pala Singh’s case and, after examining certain English decisions, concluded that the earlier judgment could not be regarded as correctly decided with regard to a mark on the ballot paper. This background frames the current dispute over whether the Tribunal and the High Court were justified in rejecting the ballot paper Ex. P‑76.

With respect to Exhibit P‑76, the High Court considered the material to be a case of writing and based its reasoning on the decision in Woodward v. Sarsons. By a majority, the High Court concluded that the ballot paper in question was invalid. Rule 73 (2) (d) provides that a ballot paper shall be invalid if “there is any mark or writing by which the elector can be identified.” The appellant argues that before a ballot paper may be declared invalid under this provision, it must be shown that the elector is actually identified because of the mark or writing that is not permitted by Rule 37‑A. Accordingly, Rule 73 (2) (d) requires two conditions: first, that a mark or writing exists on the ballot paper that is not authorized by Rule 37‑A; and second, that such mark or writing is of a nature that enables the elector to be identified because of it. In the present case there is no dispute that the ballot paper contains both a mark and a piece of writing that are not the figure allowed by Rule 37‑A. The issue, therefore, is whether the presence of those mark and writing is sufficient to identify the elector. This issue turns on the meaning of the phrase “by which the elector can be identified” in Rule 73 (2) (d). The appellant maintains that the phrase requires actual identification of the elector by the mark or writing. The respondents, however, contend that actual identification is not necessary; it is enough if the mark or writing could possibly lead to identification, or at least if it is reasonably probable that the elector could be identified from it. Thus three possible constructions of the phrase are identified: (i) any mark or writing that might possibly lead to identification of the elector; (ii) any mark or writing that can reasonably and probably lead to identification of the elector; and (iii) a mark or writing that, when considered with external evidence, actually identifies a particular elector. The appellant favours the third construction for both the mark and the writing, while the respondents prefer the first construction and also argue that the words do not extend beyond the second construction.

The Court held that the wording could not support the first construction, which would treat any mark or writing other than that allowed by rule 37‑A that might possibly lead to the identification of the elector as invalidating the ballot. The Court explained that when the legislature said the mark or writing must be such that the elector can be identified, it did not intend merely a remote possibility of identification. If the intention had been to invalidate a ballot on the basis of any conceivable possibility of identification, almost every extra mark or writing would fall within the mischief of the provision. The Court noted that in such a case the language of clause (d) of rule 73(2) would have been framed differently, perhaps stating simply that “any mark or writing other than that permitted by rule 37‑A” would invalidate the paper. Instead, the legislature used the phrase “any mark or writing by which the elector can be identified.” The Court interpreted this phrase to require something more than a mere possibility before a vote could be set aside. Such a situation could arise where a pre‑arrangement is proved, or where the number and nature of the marks are such that an inference of pre‑arrangement can safely be drawn without further evidence.

The Court further rejected the third construction favoured by the appellant. It observed that if the legislature had intended to invalidate only those votes in which the elector was actually identified because of the mark or writing, it would have employed the words “the mark or writing which identifies the elector.” Instead, the statute says “any mark or writing by which the elector can be identified.” The Court explained that this wording does not demand actual identification before a ballot is invalidated, although proof of identification, when offered, would trigger the disability. Consequently, the Court concluded that the second construction, among the three alternatives discussed, accurately reflects the legislative intent. Under this construction, any mark or writing by which the elector can reasonably and probably be identified will invalidate the ballot paper. The phrase “can be identified” therefore signifies more than a mere possibility but does not require that the elector’s identity be actually established before the ballot is rejected. In true construction, the words mean that the mark or writing should be such that the elector can be identified with reasonable probability.

In this case, the Court explained that the expression “such that the elector can be identified thereby with reasonable probability” requires more than a mere theoretical possibility of identification. The Court held that the vote would not be invalidated merely because identification might be possible, nor was it necessary that the elector be positively identified before the ballot could be set aside. The requirement, according to the Court, was that there be a reasonable probability that the elector could be identified by the mark or writing on the ballot paper, except where the writing was permitted under rule 37‑A. If such a reasonable probability existed, the ballot paper would be declared invalid.

The Court further observed that interpreting the provision as demanding a reasonable probability of identification created a distinction in how the returning officer, the tribunal and the court would treat marks as opposed to writings. The Court noted that a mere mark, by itself, generally possessed little intrinsic value for identification. Consequently, when the identification hinged on a mark, the returning officer, tribunal or court could lawfully require proof that an arrangement existed between the elector and the candidate to place a specific mark on the ballot for the purpose of identification. By contrast, the Court stated that a writing could, in certain circumstances, be sufficient on its own to allow the returning officer, tribunal or court to conclude that the elector could be identified.

The Court emphasized that the question of whether a writing enabled identification was always a factual inquiry to be decided on the facts of each case. In that regard, the extent and nature of the writing on the ballot paper could influence the determination. For illustration, the Court explained that a single capital letter such as “A” might be deemed inadequate material for identification, whereas a longer passage consisting of several words could, after considering all surrounding circumstances, be sufficient to identify the elector. The Court added that factors such as the size of the constituency and the number of words employed might be relevant to the assessment.

Finally, the Court clarified the procedure for scrutinising ballot papers under rule 37‑A. It held that the returning officer was not obliged to take evidence to decide whether a ballot should be rejected. However, if any party was prepared to offer evidence at the time of scrutiny while votes were being counted, the returning officer was permitted to consider that evidence in determining whether the mark or writing rendered the elector identifiable. The Court acknowledged that, in practice, evidence might not be presented, and in such situations the returning officer, the tribunal or the court would have to decide, based solely on the ballot as it stood, whether the mark or writing satisfied the requirement of reasonable probability of identification.

The Court explained that the central question was whether, on the ballot paper as it stood, the mark or any writing enabled the elector to be identified. It observed that the problem was more acute when only a simple mark was present, whereas a writing might pose a lesser difficulty depending on its size and the amount of text on the ballot paper. Accordingly, the responsibility to assess, in each individual case, whether the writing was of such character and extent that it revealed the identity of the voter rested with the returning officer, the election tribunal, or the court, taking into account all surrounding circumstances. The Court noted that comparable rules existed in English law and that English courts had addressed the issue in several decisions. In the case reported as Woodward’s case(1), the validity of ballot papers that contained both marks and writings not authorised by the rules was examined. Concerning the marks, the paper showed two crosses instead of the single cross required by the rule. The court observed that if evidence established an arrangement by which a voter deliberately placed two marks to convey a particular meaning, then, on the basis of that evidence, the double mark could be considered a distinctive identifier of the voter and the ballot paper should be rejected. However, the court held that the mere presence of two crosses did not constitute a material breach of the statute. Regarding the writings on two ballot papers, the court, though hesitant, decided that they should be disallowed and articulated the rule as follows: “We yield to the suggestive rule that the writing by the voter of the name of the candidate may give too much facility, by reason of the handwriting, to identify the voter.” (1) (1875) L. R. 10 C. P. 733. P./64‑4 The issue resurfaced in Isaacson v. Durant(1), commonly referred to as the Stepney case. In that matter a name had been inscribed on the reverse side of a ballot paper, raising the question of whether such writing could lead to the voter’s identification. The two judges hearing the case disagreed. Field J. expressed uncertainty as to whether the voter had indeed written the name on the back of the paper. Denman J., however, considered the case to fall within the precedent set by Woodward’s case(2) and, at page 42, stated: “Now I take the decision in Woodward v. Sarsons to amount to this, not that every departure from a simple cross is a mark by which the voter can be identified—a double cross, for instance, was allowed by the Court—but that where the name of the candidate, not of the voter, is written in full upon the ballot‑paper, the vote shall be invalid, because that is a mark by which the voter can be identified.”

In the judgment the Court explained that the rule required that when a person wrote a name in full on a ballot paper, that writing served as proof of his handwriting, and proof of handwriting was taken as proof of the identity of the person who had written it. The Court then noted that the same issue had been reconsidered in H. L. Lawson v. Colonel Chester Master (known as the Cirencester case) and that Hawkins J. had observed at page 198 that the statutory language required a mark that actually identified the voter, not merely a possible identification, and that whether a particular mark satisfied that requirement was a question of fact. The Court further recounted that the question arose again in Henry Edward Duke v. Richard Harold, where the voter had written the words “Up, Duke!” opposite the name of the chosen candidate. At that stage Ridley J. stated that he did not think later decisions had displaced the rule set out in Woodward’s case, and he qualified his view by saying that the rule had not been truly overturned. The Court then referred to Lewis v. Shepperdson, a decision that continued to follow the Woodward rule as it had been applied in the Cirencester case. Consequently, the English law, as reflected in the authorities (1) (1886) TV O'M & H 34; (2) (1875) L.R. 10 C.P. 733; (3) (1893) IV O'M & H 194; (4) (1911) VI O'M & H 228; and (5) (1948) 2 All E.R. 503, appeared consistent with the Court’s interpretation of rule 73(2)(d). The Court then turned to counsel’s submission on behalf of the appellant, which cited three Australian cases. In Reginald Pole Blundell v. Joseph Vardon, the court mainly dealt with marks on ballots and only once considered a written word, “yes,” which it held to be a valid vote, while still following the reasoning of the Cirencester case. In Kennedy v. Palmer, the Australian court likewise adhered to the Cirencester principle, again in a context concerning marks rather than writing. In Kean v. Kerby, the presiding officer had failed to write the candidate’s name on the ballot as required, leading the voter to write “McGrath” and mark the figure 1. It was argued that because the voter had written the candidate’s name, the vote should be invalid under Woodward’s rule. Isaacs J. resolved that the vote was valid, referring to Woodward’s case and expressing substantial agreement with it, but he treated the matter as a special case, emphasizing that the irregularity arose from the officer’s omission rather than from the voter’s voluntary writing of the candidate’s name.

The Court observed that the present decision did not alter the ruling in Woodward’s case (6). It further noted that if the present outcome appeared to conflict with the reasoning of Woodward’s case (7), such a discrepancy could be explained by the presence of special facts before the Court, which were thought to justify a departure from that earlier view. The Court concluded that Australian law on this issue was not fundamentally different from English law, and that the critical inquiry in each case was factual: the Court, the returning officer, or the tribunal had to determine whether, by examining the mark or writing on the ballot paper, they could identify the voter in the sense described earlier. Applying this construction to the phrase “by which the elector can be identified,” the Court examined whether ballot paper Exhibit P‑76 contained any mark or writing that would enable the elector’s identification. Apart from the figures 1, 2 and 3, which were permissible under rule 37‑A, the ballot paper also displayed crosses in each case. The Court described a cross as a very weak basis on which the elector could be reasonably identified. Consequently, the crosses were disregarded. Following each cross, the words “One, Two, Three” appeared, accompanied at the end by the figures “1, 2, 3”. The appellant argued that these words were merely written as an emphasis and that they did not allow the voter to be identified.

The Court held that there was no dispute that the words constituted the elector’s writing on the ballot paper, and the sole issue was whether this writing enabled identification. Using the interpretation previously explained, the Court asked whether the writing was of a nature and extent sufficient to allow a reasonable inference of the elector’s identity. Considering the small size of the constituency, which comprised 152 electors, the Court found that there was a reasonable probability that the elector could be identified by this writing. It rejected the appellant’s claim that the elector had only intended to emphasize his choice, noting that such an argument offered no assistance if the writing was sufficient to lead to identification. The Court concluded that the writing was indeed sufficient in extent, especially given the limited electorate, and could reasonably lead to the elector’s identification. Echoing Denman J.’s observation in the Stepney case (1), the Court affirmed that the elector’s handwriting left enough evidence of identity. Consequently, the ballot paper was rightly rejected, the High Court’s conclusion was affirmed, the appeals were dismissed, and costs were awarded, including one set hearing fee.

In this case, the Court referred to the decision in Stepney case(1). It observed that the elector, by the handwriting he used on the ballot paper, had left sufficient evidence of his identity and therefore could be identified. The Court further noted that it was not necessary, contrary to the view expressed by the majority of the learned Judges of the High Court, to require that the returning officer—who in the unusual circumstances of the present matter was the Secretary of the Legislative Assembly—must be familiar with the handwriting of the members. The Court explained that even if the returning officer did not know the handwriting, the ballot paper would still have to be invalidated when the writing on it was of a nature and extent that could lead to the identification of the elector. On the facts before the Court, it found no doubt that the words written on the ballot paper, namely “One, Two. Three”, provided sufficient evidence of the elector’s identity and therefore could lead to his identification. Accordingly, the Court held that the ballot paper was properly rejected. In light of this reasoning, the Court concluded that the decision of the High Court was correct and that the appeals against that decision must fail. Consequently, the Court dismissed the appeals, ordered the payment of costs, and required the payment of one set hearing fee. The orders included the entry “Appeals dismissed (1) (1886) IV O'M & H 34.”