Shri Shankar Babaji Savant vs Shri Sakharam Vithoba Salunkhe
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 624 of 1964
Decision Date: 9 December, 1964
Coram: R.S. Bachawat, P.B. Gajendragadkar, M. Hidayatullah, J.C. Shah, S.M. Sikri
In this matter, the case was styled Shri Shankar Babaji Savant versus Shri Sakharam Vithoba Salunkhe and others, and the judgment was delivered on 9 December 1964 by the Supreme Court of India. The opinion was authored by Justice R S Bachawat and was rendered by a Bench comprising Justice R S Bachawat, Chief Justice P B Gajendragadkar, Justice M Hidayatullah, Justice J C Shah and Justice S M Sikri. The petition was filed by Shri Shankar Babaji Savant and the respondents were Shri Sakharam Vithoba Salunkhe together with other respondents. The case is reported in the 1965 volume of the All India Reporter at page 1424 and also in the 1965 Supreme Court Reports (Second Series) at page 403, and it has been cited in later authorities such as D 1973 SC 2077 (5). The statutory provision that formed the basis of the dispute was Section 100(1)(d)(iii) of the Representation of the People Act, 1951 (Act 43 of 1951). In addition, the Court considered the scope of Rules 35 and 36 of the Conduct of Election Rules, 1961, which deal with the presiding officer’s power to disregard errors in the electoral roll and the extent of that power.
The factual backdrop described that both the appellant and the respondent had contested the same seat in the Maharashtra Legislative Assembly. Each candidate obtained an identical number of votes, and consequently the returning officer, in accordance with the applicable law, resorted to the drawing of lots and declared the appellant elected. Dissatisfied with this result, the respondent instituted an election petition. The petition asserted that the polling agent for the appellant had raised a dispute regarding the identity of nineteen voters. The presiding officer, after inquiring, determined that these nineteen individuals were indeed entered on the electoral roll as electors. The presiding officer then provided each of them with a ballot paper, but subsequently refused to allow them to insert the completed ballot papers into the ballot box. Instead, the presiding officer instructed each voter to hand the ballot paper to him. He collected the papers and placed them in a sealed envelope, which he forwarded to the returning officer. Of the nineteen ballots, eighteen recorded votes in favour of the respondent. The returning officer, however, did not count these eighteen votes, and the petition argued that this omission rendered the appellant’s election void.
The Election Tribunal initially dismissed the petition. On appeal, the High Court set aside the election of the appellant and ordered a fresh election. The matter then reached the Supreme Court on appeal. The appellant advanced several grounds of contention. First, it contended that the petition was premised upon a breach of Section 100(1)(d)(iv) of the Representation of the People Act, and that the High Court had erred in invoking Section 100(1)(d)(iii) to declare the election void. Second, the appellant argued that Section 100(1)(d)(iii) contemplated misconduct or breach of duty on the part of the returning officer only and did not extend to an improper refusal by the presiding officer at the polling stage. Third, it submitted that the Tribunal had wrongly held that the appellant could not raise the objection that the nineteen voters were ineligible to vote without first filing a recrimination under Section 97 of the Act. Fourth, the appellant asserted that the presiding officer’s power to overlook errors in the electoral roll was limited by Rule 35(4) of the Conduct of Election Rules, 1961, which permitted disregard only of clerical or printing errors; therefore, errors concerning surnames and fathers’ names of the nineteen voters could not be classified as clerical or printing errors. Finally, the appellant maintained that the refusal to count the nineteen votes could not be deemed an improper refusal of votes that affected the result of the election because the votes had never become valid votes.
The Court observed that the election petition expressly alleged that the presiding officer had wrongly prevented nineteen voters from placing their ballot papers into the ballot box, and consequently the pleadings sufficiently encompassed a claim of breach of section 100(1)(d)(iii). The Court therefore held that the petition’s scope was wide enough to cover an allegation of improper refusal of votes under that subsection. Further, the Court explained that the provision in section 100(1)(d)(iii) applied not only to situations where a returning officer incorrectly rejected votes at the counting stage, but also to circumstances where a presiding officer wrongly refused to accept a vote at the polling stage. In addition, the Court clarified that when an enquiry is conducted under section 100(1)(d)(iii) concerning an alleged improper refusal of votes, the respondent to the election petition was permitted to contest the identity of the voters without the necessity of filing any recrimination under section 97. These observations were recorded in the judgment at paragraphs [407 B], [412 A‑B] and [407 E].
The Court further examined the nature of errors relating to surnames or fathers’ names in the electoral roll and held that such errors could not be characterized as mere clerical mistakes. A clerical error, the Court explained, denoted a slip of the pen or a transcription mistake made by a clerk. While rule 35(4) of the Conduct of Election Rules, 1961, required the presiding officer to overlook strictly clerical and printing errors in exercising powers under rules 35 and 26, the Court stated that the presiding officer could disregard other types of errors if he was satisfied about the true identity of the elector. Consequently, an error or defect in the entry of the electoral roll did not disqualify the elector from voting; the elector could still prove to the presiding officer that he was the person named in the roll. The Court found that the presiding officer was satisfied that the nineteen voters were indeed the electors referred to in the relevant entries, that the surnames and fathers’ names recorded were erroneous, and that those errors should be ignored. Accordingly, the presiding officer correctly issued ballot papers to those voters, as reflected in paragraphs [411 B, E‑F]. The Court then held that an improper refusal to receive a vote, which prevented the vote from becoming a valid ballot and from being counted for the candidate for whom it was cast, fell within the meaning of section 100(1)(d)(iii). In the present case, the presiding officer had improperly refused to receive eighteen votes cast in favour of the respondent. The returning officer correctly refused to count those votes because a ballot paper only becomes a valid vote when it is placed in the ballot box. The Court noted that had those eighteen votes been properly received, the election result would have been different. Because the improper refusal materially affected the result, the Court concluded that the election of the appellant was rightly set aside, as indicated in paragraph [413 P‑H].
Counsel for respondent No 1 were P D Kamerkar, K Rajendra Chaudhuri and K R Chaudhuri, while counsel for respondents Nos 5 and 6 were D R Prem and B R G K Achar. The judgment of the Court was delivered by Justice Bachawat. In the election for the Maharashtra Legislative Assembly from the Mahad constituency, Shankar Babaji Savant and Sakharam Vithoba Salunkhe contested against four other candidates. Both Savant and Salunkhe obtained the same number of valid votes, whereas each of the remaining candidates received substantially fewer votes. The Returning Officer, faced with a tie, resorted to drawing lots and consequently declared Savant to be duly elected. Salunkhe responded by filing an election petition asserting that the election should be declared void because he had, in his view, obtained a majority of the valid votes and therefore ought to be declared the winner. The Election Tribunal at Alibag dismissed Salunkhe’s petition. On appeal, the Bombay High Court set aside Savant’s election, holding the election void, and rejected the remainder of Salunkhe’s claim. Savant then sought special leave to appeal this decision. The High Court had earlier dismissed Savant’s preliminary argument that the first appeal could not be maintained due to non‑compliance with section 119A of the Representation of the People Act, 1951; that argument was not pursued further before this Court. Salunkhe’s specific allegation that the Returning Officer had improperly received and counted a postal ballot bearing the name “Shankar Babaji Savant” on its reverse was resolved by a concurrent finding that the elector could not be identified from that writing; consequently this particular complaint was abandoned and left out of further consideration.
The principal grievance raised by Salunkhe concerned the conduct of Kolhe, the Presiding Officer at the polling station in Village Turveh Khurd, who allegedly prevented nineteen voters from placing their ballot papers into the ballot box. On the polling day those nineteen voters intended to vote for Salunkhe. The polling agent supporting Savant challenged the identity of each of those voters, demanding a deposit of two rupees in cash from the agent for each challenge, which Kolhe received. Upon investigation Kolhe determined that all nineteen individuals were indeed registered electors and that the challenges to their identity were unsupported. Consequently, the voters were supplied with ballot papers, marked their choices, and sought to insert the completed papers into the ballot box. Kolhe, however, refused to allow the insertion and instructed the voters to hand the papers over to him. He then placed the ballots inside a sealed envelope and transmitted the envelope to the Returning Officer. Salunkhe established that this action was improper. Both the Election Tribunal and the High Court concurred that, under the circumstances, the Presiding Officer had wrongly taken possession of the ballot papers, thereby denying the voters the opportunity to cast their votes directly into the ballot box.
None of the nineteen ballot papers were returned by the voters to the Presiding Officer pursuant to Rule 41(2) of the Conduct of Election Rules, 1961. All nineteen voters had already marked their preferences on their respective ballot papers before those papers came into the possession of the Returning Officer. A scrutiny of the sealed ballot papers revealed that eighteen of them recorded votes in favour of Salunkhe, while one recorded a vote for a candidate other than Savant and Salunkhe. The ballot papers were not altered or tampered with after the Presiding Officer had taken possession of them. The Returning Officer received the nineteen ballot papers inside the sealed envelope but did not count them because they had never been placed inside the ballot box. The central issue then was whether, under these circumstances, the election of Savant could be declared void by the court. The allegation that the Returning Officer had improperly refused to count the nineteen votes could not be sustained because those votes were not valid. The votes never entered the ballot box, and the Conduct of Election Rules, 1961, specifically Rules 39, 44, 47, 56, 57 and 64 require that a voter must insert his ballot paper into the ballot box for it to become a valid vote. According to those provisions, after polling closes, the ballot papers contained in the ballot box are transmitted by the Presiding Officer to the Returning Officer in sealed covers or bags, after which the Returning Officer scrutinises the papers taken out of the box and counts those not rejected as valid votes. The candidate who receives the largest number of such valid votes is declared elected by the Returning Officer. All of these statutory requirements demonstrate that insertion of the ballot paper into the ballot box is indispensable for a vote to be considered valid. Consequently, the Returning Officer was correct in refusing to count the nineteen ballot papers as valid votes in the tally. The Election Tribunal held that Savant’s election could not be set aside under section 100(1)(d)(iv) of the Representation of the People Act, 1951 on the ground of the voters’ failure to insert the ballot papers into the ballot box in compliance with Rule 39(1)(e) of the Conduct of Election Rules, 1961. That conclusion was affirmed, but the High Court correctly observed that the Tribunal erred by concentrating solely on the provisions of section 100(1)(d)(iv) and Rule 39. The High Court noted that the nineteen voters did not voluntarily refrain from inserting their ballot papers into the ballot box. It found that by refusing to allow the voters to place their ballot papers in the box, the Presiding Officer had improperly denied them the opportunity to cast their votes. Such an improper refusal of votes constitutes a ground for declaring the election void under section 100(1)(d)(iii) of the Representation of the People Act, 1951.
In this case the counsel for the petitioner vigorously contested the finding of the lower tribunal. The counsel argued that the matters before the Election Tribunal and the memorandum of appeal before the High Court demonstrated that the complaint lodged by Salunkhe was grounded in a breach of section 100 (1) (d) (iv) of the Representation of the People Act, 1951, and not in a breach of section 100 (1) (d) (iii). Accordingly, the counsel maintained that the High Court had erred in constructing a new cause of action for Salunkhe. The Court was not persuaded by this submission. All material facts were set out in the election petition, which plainly alleged that the Presiding Officer had improperly prevented the nineteen voters from placing their ballot papers in the ballot box. The language of the petition was sufficiently broad to encompass a violation of section 100 (1) (d) (iii). The counsel further submitted that there was no improper refusal of votes because the nineteen voters were not entitled to vote at all. He asserted that those voters were not the same individuals identified in the relevant entries of the electoral roll. In support of this claim, the counsel correctly pointed out that the Election Tribunal had erred in holding that Savant could not raise the objection without filing a recrimination under section 97 of the Representation of the People Act, 1951, and that the High Court had also erred in assuming that the objection concerning the identity of the voters had not been raised at the polling station on behalf of Savant. The Court found that the objection had indeed been expressly raised by Savant’s polling agent. Moreover, the Court considered that an inquiry under section 100 (1) (d) (iii) concerning improper refusal of votes fell outside the ambit of section 97. In such an inquiry, the respondent to the election petition may dispute the identity of the voters without needing to file any recrimination under section 97. Because of the mistaken approach adopted by both the Election Tribunal and the High Court, the counsel rightly requested that the Court examine the evidence on the question of voter identity.
The Court examined the evidence with the assistance of the counsel and became satisfied that the nineteen voters were indeed the same persons listed in the corresponding entries of the electoral roll. The Court set out the names as they appeared in the electoral roll and the names as they were given by the voters at the polling station. The entries in the electoral roll read as follows: Utekar Nanu Daulat; Dalvi Babaji Sitaram; Malakar Anandibai Pitambar; Malakar Maalti Ramachandra; Dalvi Rajaram Ramachandra; Malakar Parshuram Ranchod; Dalvi Ramchandra Tukaram; Dalvi Sakharam Shakar; Dalvi Muktabai Govind; Dalvi Bhagubai Ramchandra; Dalvi Shantabai Shankar; Dalvi Parvati Shankar; Dalvi Muktabai Babaji; and Dalvi Ramabai Pandurang. The names recorded by the voters at the polling station were: Utekar Nanu Ganpat; Utekar Babaji Sitaram; Shet Anandibai Pitambar; Shet Malati Ramachandra; Utekar Rajaram Ramachandra; Shet Parsram Rauchhod; Utekar Ramachandra Tukaram; Utekar Sakhram Shankar; Utekar Muktabai Govind; Utekar Bhagubai Ramchandra; Utekar Shantabai; Utekar Parvati Shankar; and Jadhav Muktabai Babaji. After a careful comparison, the Court concluded that the individuals who attempted to cast votes corresponded to the electors named in the roll, and therefore the alleged improper refusal of votes was established under section 100 (1) (d) (iii).
The list of voters shown in the electoral roll contained several discrepancies when compared with the names actually given by the voters at the polling station. For example, entry number fifteen recorded “Dalvi Draupadibai Arj nn” while the voter identified herself as “Utekar Draupadibai Arjuna”. Entry sixteen listed “Dalvi Krishnabai Babaji”, whereas the voter’s name was recorded as “Utekar Krishnabai Babaji”. Similarly, entry seventeen showed “Dalvi Sitabai Jivaji” and the voter gave the name “Utekar Sitabai Jivaji”. Entry eighteen was recorded as “Dalvi Ganpat Dagdu” while the voter said “Utekar Ganpati Dagdu”. Finally, entry nineteen recorded “Dalvi Sittram Babaji” and the voter gave the name “Utekar Sitaram Babaji”. In the first entry of the list, the father’s name in the electoral roll was recorded as “Daulat”, but the voter herself supplied “Ganpat” as her father’s name.
For the remaining entries, the discrepancy concerned the surname only. In some cases the surname “Dalvi” appeared in the roll where the voter gave the surname “Utekar”. In other cases the surname “Shet” appeared in place of “Malakar”, and in one instance the surname “Jadhav” appeared instead of “Dalvi”. Moreover, in the first entry the roll also contained the husband’s name “Shankar”, but the voter, who was a Hindu woman, chose not to disclose her husband’s name at the polling station. Apart from these differences, the remainder of each voter’s name, together with the age and house number, matched the details recorded in the electoral roll entries.
During the polling, no other individual claimed to be the elector described in any of the entries. The police officer present at the polling place identified each of the nineteen voters as the persons referred to in the respective entries. Considering all of these circumstances, the Court concluded that the identities of the voters were satisfactorily established. The Court held that the surnames and the father’s name appearing in the electoral roll were merely inaccurate descriptions of the same voters.
Mr. Sastri then argued that the authority of the Presiding Officer to disregard mistakes was limited by Rule 35(4) of the Conduct of Election Rules, 1961. He maintained that under that rule the Presiding Officer could overlook only clerical or printing errors, and that the discrepancies in the present case could not be characterised as such. The High Court had previously held that, pursuant to Rule 35(4), the Presiding Officer could ignore solely clerical or printing errors. It found that the error in the father’s name of the first voter could not be regarded as merely clerical or printing and therefore the ballot paper issued to that voter was invalid. Conversely, the High Court held that the surname discrepancies affecting the other eighteen voters were merely clerical errors, and consequently the ballot papers issued to them were valid.
Mr. Sastri contested this finding, contending that the surname discrepancies could not be described as clerical errors. The Court agreed with his contention. It explained that a clerical error denotes a mistake that arises from a slip of the pen or a similar lapse, essentially a mistake made by a clerk or transcriber in writing or copying. The Court was unable to classify the errors concerning the surnames or the father’s name as merely clerical in nature. Nonetheless, the Court noted that a further question remained: whether, apart from Rule 35(4), the Presiding Officer possessed the power to disregard errors that were not strictly clerical or printing mistakes. Mr. Sastri submitted that the Presiding Officer’s authority in this regard was confined by Rule 35(4) and that the Officer could not disregard errors other than those that were strictly clerical or printing.
In this case, the petitioner argued that the electoral roll was definitive with respect to the name of the elector. He asserted that the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960 laid down an elaborate procedure for correcting an entry in the roll, and that any mistake in the name appearing in the entry could be remedied only by resorting to the mechanism prescribed therein. He further maintained that at the time of polling the Presiding Officer was empowered to overlook only clerical or printing errors.
The Court noted that Indian electoral law contained no provision corresponding to section 39(5) of the English Representation of the People Act, 1949, which provides that a misnomer or inaccurate description of any person or place in the register of parliamentary electors does not affect the full operation of the document where the description is commonly understood. In view of the petitioner’s elaborate argument, the Court decided to examine briefly the scheme of the Indian electoral statutes on this subject.
Part III of the Representation of the People Act, 1950 deals with the preparation of electoral rolls for assembly constituencies. Sections twenty‑one to twenty‑five of that Act set out the procedure for preparing and annually revising the rolls, correcting entries that are erroneous or defective, including names of persons whose names have been omitted, and for filing applications to the electoral registration officer in this regard and for appeals from his orders. In particular, section twenty‑two clause (a) expressly provides for correction of any entry that is erroneous or defective in any particular.
The Registration of Electors Rules, 1960, rules ten to twenty‑seven prescribe the publication of a draft roll, the lodging of claims and objections in respect of the draft roll, the disposal of those claims and objections, the issuance of consequential orders and the right of appeal, the final publication of the rolls, and the procedure for correcting entries and including names on applications under sections twenty‑two and twenty‑three of the 1950 Act. Rule thirteen paragraph three together with Form Eight shows that a person to whom an entry relates may apply for correction of any incorrect particular or particulars in the entry.
Rules twenty‑two clause two, twenty‑three and twenty‑six explain that on final publication, the roll together with the list of amendments made by the registration officer becomes the official electoral roll of the constituency, subject to further amendments that may be necessary to give effect to any subsequent order disposing of claims and objections or directing correction of entries and inclusion of names.
Section two(e) of the Representation of the People Act, 1951 defines an elector in relation to a constituency as a person whose name is entered in the electoral roll of that constituency for the time being in force. Section sixty‑two clause one of the same Act provides that no person who is not entered in the roll, except as expressly provided by the Act, shall be entitled to vote.
The Act expressly provides that any person whose name is presently entered in the electoral roll of a constituency is entitled to cast a vote in that constituency. Section 27 of the Act imposes on the Presiding Officer at a polling station the duty to ensure that the poll is conducted fairly. Part IV of the Conduct of Election Rules, 1961 governs voting in parliamentary and assembly constituencies. Rules 35, 36, 37 and 38 together prescribe the procedure for identifying electors at the polling station, for disposing of challenges to an elector’s identity, for preventing personation and for issuing ballot papers to electors. Rule 35(1) empowers the Presiding Officer to engage any persons he considers appropriate to assist in the identification of electors. Under Rule 35(2), when each elector enters the polling station, the Presiding Officer must compare the elector’s name and other particulars with the corresponding entry in the electoral roll and then announce the serial number, name and other details of that elector. Rule 35(4) states that, in determining whether a person may receive a ballot paper, the Presiding Officer shall overlook purely clerical or printing mistakes in the electoral‑roll entry, provided he is satisfied that the person seeking the ballot is the same individual to whom the entry pertains. Rule 36 provides for a summary enquiry when the identity of a person claiming to be a particular elector is challenged. Rule 36(2)(b) requires the Presiding Officer to read the entire relevant entry in the electoral roll and to ask the person whether he is the individual described in that entry. Rule 36(3) allows both the challenger and the person whose identity is challenged to present evidence on the question of identity, and authorises the Presiding Officer to pose any questions he deems necessary to establish that identity. Rule 36(4) further provides that, after the enquiry, if the Presiding Officer is of the view that the challenge is not substantiated, he shall permit the person challenged to vote; if, however, he is convinced that the challenge is valid, he shall prevent the person challenged from voting. This brief survey of the electoral law demonstrates that the franchise of a citizen is a valuable right. An elector is entitled to have his name entered in the electoral roll so that he may vote at the election. If the entry relating to him contains an error or a material defect, he may obtain correction of that error or defect by using the mechanisms set out in the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960. In the absence of such correction, the elector faces the risk of a challenge at the polling station and may be barred from voting if he fails to establish his identity. Nevertheless, an error or defect in the entry does not disqualify the elector from voting; it remains possible for him
In order to convince the Presiding Officer at the polling station that he was indeed the elector named in the electoral entry, the applicant had to satisfy the officer of his identity. Rule thirty‑five sub‑paragraph four of the Conduct of Election Rules, 1961 obliges the Presiding Officer to overlook merely clerical or printing mistakes when he is satisfied of the elector’s identity. However, the authority granted by the Presiding Officer to disregard errors in the entry is not limited strictly to that provision. Rules thirty‑five and thirty‑six together endow the Presiding Officer, once satisfied of the claimant’s identity, with ample power to inquire into the matter. If, after such inquiry, the officer is convinced that the claimant is the elector referred to in the entry and that certain portions of the entry contain incorrect or erroneous descriptions, he may ignore those inaccuracies and issue the ballot paper to the claimant. The Court is not prepared to interpret Rules thirty‑five and thirty‑six narrowly so as to restrict the officer’s power to overlook only clerical or printing errors. Accordingly, under the specific provision of Rule thirty‑five sub‑paragraph four the officer must disregard merely clerical and printing mistakes, and in exercising his general powers of enquiry under Rules thirty‑five and thirty‑six he may also disregard other errors provided he is satisfied of the elector’s identity. In the present case the Presiding Officer was satisfied that the nineteen voters were the electors named in the corresponding entries, although the surnames and fathers’ names recorded therein were erroneous and therefore should be ignored. On that basis the Court holds that the ballot papers were correctly issued to all nineteen voters. No distinction can be drawn between an error in the father’s name and an error in the surname of the elector. In the foregoing discussion the Court deliberately omitted reference to section thirty‑six of the Representation of the People Act, 1951 and its sub‑sections forty‑four and seven, because the issue of a misnomer or inaccurate description of a candidate in a nomination paper is not before the Court. The matter before the Court concerns only the effect of an error in the elector’s name on the electoral roll and the elector’s right to vote. Counsel for the petitioner further argued that section one hundred sub‑section one d iii contemplates breaches of duty by the Returning Officer and that an improper refusal of a vote by the Presiding Officer at a polling station cannot be treated as a breach of that provision. The Court rejects that contention. Section one hundred sub‑section one d iii covers not only an improper rejection of votes by a Returning Officer at the time of counting but also an improper refusal of a vote by the Presiding Officer at the time of polling. There is no doubt that the conduct of Kolhe in not permitting the nineteen voters to place their ballot papers in the ballot box amounts to an improper refusal of votes within the meaning of section one hundred sub‑section one d iii.
The Court observed that the conduct of the Presiding Officer, who refused to accept the ballot papers of nineteen voters, constituted an improper refusal of votes within the meaning of section 100(1)(d)(iii). The respondent’s counsel, Mr Sastri, argued that the term “improper refusal of votes” in that provision must refer only to the refusal of votes that are already valid, and therefore, because the nineteen ballot papers never became valid votes, their refusal could not be characterised as an improper refusal of votes that affected the result of the election under section 100(1)(d)(iii). In support of this position, Mr Sastri heavily relied on the observations of Justice Venkatarama Aiyar in the case of Hari Vishnu Kamath v. Syed Ahmed Ishaque and others, reported as [1955] S.C.R. 1104, 1131 and 1132. The quoted passage read: “The expression ‘the result of the election’ in section 100(1)(c) must, unless there is something in the context compelling a different interpretation, be construed in the same sense as in section 66, and there it clearly means the result on the basis of the valid votes...... It is argued with great insistence that as the object of the Election Rules is to discover the intention of the majority of the voters in the choice of a representative, if an elector has shown a clear intention to vote for a particular candidate, that must be taken into account under section 100(8)(c), even though the vote might be bad for non‑compliance with the formalities. But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all.” In the Kamath case, ballot papers that did not bear the required marks were received and counted as valid votes, thereby violating the mandatory provision of Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petition) Rules, 1951. The Supreme Court held that votes received in breach of Rule 47(1)(c) could not be regarded as valid votes, must be disregarded, and only valid votes could be counted for the purpose of declaring the result of an election. The complaint in that case concerned an improper reception of votes, and the Court’s analysis was confined to the question of whether invalid votes could be counted for determining the election result; consequently, the observations of Justice Venkatarama Aiyar must be read in that limited context and not as authority on an improper refusal of votes.
The Court further explained that a vote which is improperly refused remains a vote, although it does not become a valid vote. From the moment an elector marks his choice on the ballot paper until the vote is counted by the Returning Officer, the voting process is continuous. An improper refusal of a vote therefore impacts the election in two distinct manners. First, it prevents the vote from ever attaining the status of a valid vote and from being counted as a valid vote in favour of the candidate for whom the elector intended to vote. Second, it influences the overall result because, had those votes been received and counted, the outcome of the election might have been different. It also affects
The Court observed that the election of the candidate who had been declared returned could have been different if the nineteen votes that were improperly refused had actually been received, because those votes might have prevented his return altogether. Accordingly, the High Court was correct in taking the improper refusal of those nineteen votes into account when it examined whether the election of Savant should be declared void. However, the Court also noted that because those nineteen votes were not valid votes, they could not be used to determine whether Salunkhe had obtained a majority of the valid votes cast. The High Court therefore rightly refused to hold that Salunkhe had secured a majority of the valid votes, and the Court further observed that Salunkhe had not filed any cross‑appeal against that finding.
The Court then set out the composition of the nineteen votes that the Presiding Officer had refused to receive. It found that eighteen of those votes had been cast in favour of Salunkhe, while the remaining one vote had been cast for a candidate other than either Savant or Salunkhe. Savant had contended that two ordinary ballot papers and between twenty‑seven and twenty‑nine postal ballot papers had been wrongly rejected and should therefore have been counted in his favour. The High Court examined that claim and concluded that only one ballot paper had been wrongly rejected and that it ought to have been counted for Savant; all of Savant’s remaining allegations were rejected and were not pressed before this Court. After considering the evidence, the Court found that Savant and Salunkhe each possessed an equal number of valid votes. It also held that there had been an improper refusal to receive the eighteen votes that were intended for Salunkhe and an improper rejection of one vote that was intended for Savant. The Court further explained that, had those eighteen votes for Salunkhe been properly received, the result of the election would have been different. Consequently, the Court determined that the outcome of the election had been materially affected by the improper refusal of those votes. In view of that finding, the Court affirmed that the High Court was correct in declaring Savant’s election void. As a result, the appeal was dismissed and the appellant was ordered to pay costs.