CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3839 of 1982.
From the Judgment and order dated the 12th October, 1982 of the Kerala High Court in Election Petition No. 1 of 1982.
K.K. Venugopal, G. Vishwanatha Iyer and E.M.S. Anam for the Appellant.
Ram Jethamalani, M.M. Abdul Khader, Dileep Pillai and M.A. Firoz for Respondent No. 1.
K.G. Bhagat, Addls, Sol. General and Miss A. Subhashini for Union.
S.S. Ray, A.K Sen and Miss A. Subhashini for the Election Commissioner.
Ram Jethamalani and Miss Rani Jethmalani for the Intervener.
The Judgment of the Court was delivered by
FAZAL ALI, J. This election appeal has been filed by the appellant, who was a candidate for election to "No. 70 Parur Assembly Constituency" in Kerala but was not elected. Six candidates contested the said election which was held on May 19, 1982, out of whom the first respondent (Sivan Pillai), who was a candidate of the Communist Party of India, and the appellant were the two principal contestants. The result of the election was announced on May 20,1982 in which the first respondent was declared elected having secured 30450 votes as against 30327 votes secured by the appellant. Thus, the first respondent secured 123 more votes than the appellant. Of the 30450 votes, 11268 were cast manually, according to the conventional method provided in the Conduct of Election Rules, 1961 (for short, to be referred to as the ’Rules’) made under the Representation of the People Act, 1951 (hereinafter to be referred to as the ’Act’), and 19182 votes were cast by means of electronic machines (for short, to be referred to as ’voting machines’). This was done in pursuance of the direction issued by the Election Commission of India (for facility, to be referred to as the ’Commission’) by virtue of a notification published in the Kerala Gazette on 13.5.82. The said notification was purported to have been made under Art. 324 of the Constitution of India, and has been extracted on pages 3 to 5 of the judgment of the High Court and it is not necessary for us to repeat the same having regard to the point of law that we have to decide in the instant case.
It may be mentioned that prior to issuing the notification the commission had sought the sanction of the Government of India which was however refused. As mentioned above, the votes by the mechanical process were cast in 50 out of the 85 polling stations.
The trial Court upheld the validity of voting by machine and held that the respondent was duly elected to the Assembly seat. Hence, this appeal by the appellant.
Art. 324 of the Constitution gives full powers to the Commission in matters of Superintendence, direction and control of the preparation of electoral rolls and also for the conduct of elections to the Parliament and State Legislatures. It was argued that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Art. 324 will prevail over any Act passed by the Parliament or Rules made thereunder. In order to buttress this argument, it was contended that the manner of voting was a matter coming within the ambit of Arts. 324 and 327 which empowered the Parliament to make laws in respect of matters relating to or in connection with the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Art. 324 and if there was any conflict between a law enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections to Parliament that law must yield to Art. 324, otherwise the very object of Art. 324 would be defeated. Notice was given by this Court both to the Union of India as also the Commission though in terms of s. 82 of the Act they are not necessary parties and were not before the High Court.
This is a very attractive argument but on a closer scrutiny and deeper deliberation on this aspect of the matter, it is not possible to read into Art. 324 such a wide and uncanalised power, which is entrusted to the Commission as Mr. Jethmalani would have us believe. Part XV of the Constitution contains Arts. 324 to 328 which relate to the manner in which elections are to be held, the rights of persons who are entitled to vote, preparation of electoral rolls, delimitation of constituencies, etc., but this is merely the storehouse of the powers and the actual exercise of these powers is left to Parliament under Arts. 325 to 329. In other words, Art. 324 has to be read in harmony with, and not in isolation of Arts. 326 to 329. Art. 324 may be extracted thus:
"324. Superintendence, direction and control of
elections to be vested in an Election Commission.
(1) The superintendence, direction and control of
the preparation of the electoral rolls for, and the
conduct of all elections to Parliament and to the
Legislature of every State and of elections to the
offices of President and Vice-President held under this
Constitution shall be vested in a Commission (referred
to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the
Chief Election Commissioner and such number of other
Election Commissioners, if any, as the President may
from time to time fix and the appointment of the Chief
Election Commissioner and other Election Commissioners
shall, subject to the provisions of any law made in
that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so
appointed the Chief Election Commissioner shall act as
the Chairman of the Election Commission.
(4) Before each general election to the House of
the People and to the Legislative Assembly of each
State, and before the first general election and
thereafter before each biennial election to the
Legislative Council of each State having such Council,
the President may also appoint after consultation with
the Election Commission such Regional Commissioners as
he may consider necessary to assist the Election
Commission in the performance of the functions
conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by
Parliament, the conditions of service and tenure of
office of the Election Commissioners and the Regional
Commissioners shall be such as the President may by
rule determine:
Provided that the Chief Election Commissioner
shall not be removed from his office except in like
manner and on the like grounds as a Judge of the
Supreme Court and the conditions of service of the
Chief Election Commissioner shall not be varied to his
disadvantage after his appointment.
Provided further that any other Election
Commissioner or a Regional Commissioner shall not be
removed from
office except on the recommendation of the Chief
Election Commissioner.
(6) The President, or the Governor of a State,
shall when so requested by the Election Commission,
make available to the Election Commission or to a
Regional Commissioner such staff as may be necessary
for the discharge of the functions conferred on the
Election Commission by clause (1)."
While interpreting a constitutional provision we must remember the memorable words of Chief Justice Marshall:
"We must never forget that it is the Constitution
which we are expounding."
Another golden rule laid down by this Court on the interpretation of statutes is that we should so interpret the language of a Statute as to suppress the mischief and advance the object. It is true that Art. 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures but then the Article has to be read harmoniously with the Articles that follow and the powers that are given to the Legislatures under entry No. 72 in the Union List and entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures. By no standards can it be said that the Commission is a third Chamber in the legislative process within the scheme of the Constitution. Merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures.
It was further argued that this power was necessary in order to make the Commission an independent body and in this connection our attention was drawn to a speech of Dr. Ambedkar in the Constituent Assembly when the question of making the Election Commission an independent body was being debated, At page 905, Constituent Assembly Debates (Vol.8), Dr. Ambedkar observed thus:
"But the House affirmed without any kind of
dissent that in the interests of purity and freedom of
elections to the legislative bodies, it was of the
utmost importance that they should be freed from any
kind of interference from the executive of the day. In
pursuance of the decision of the House, the Drafting
Committee removed this question from the category of
Fundamental Rights and put it in a separate part
containing Articles 289, 290 and so on, Therefore, so
far as the fundamental question is concerned that the
election machinery should be outside the control of the
executive Government, there has been no dispute. What
article 289 does is to carry out that part of the
decision of the Constituent Assembly. It transfers the
superintendence, direction and control of the
preparation of the electoral rolls and of all elections
to Parliament and the Legislatures of States to a body
outside the executive to be called the Election
Commission."
These observations merely show that the intention of the founding fathers of our Constitution was to make the Commission a separate and independent body so that the election machinery may be outside the control of the executive Government. What Dr. Ambedkar, or for that matter the founding fathers, intended was that the superintendence, direction and control of the preparation of electoral rolls and of all elections to Parliament and State Legislatures should be left to the Election Commission. This object has been fully carried out by the provisions in Arts. 324 to 329. Neither the observations of Dr. Ambedkar nor the provisions of the Constitution could ever have intended to make the Commission an apex body in respect of matters relating to elections, conferring on it legislative powers ignoring the Parliament altogether.
Mr. Asoke Sen, appearing for the Commission, speaking in the same strain as Mr. Jethmalani, contended that Art. 324 was a Code in itself and was couched in a very plain and simple language which admits of no ambiguity and, if so construed, it gives full powers and authority to the Commission to give any direction in connection with the conduct of elections. It was further submitted that if this interpretation is not given then Arts. 325 to 329 would amount to defeating the very object which was sought to be achieved by Art. 324. Supporting argument was built up by Mr. Sen by heavily relying upon the opening words in Art. 327 to the effect: "subject to the provisions of this Constitution" and absence of any such rider in Art. 324. For the reasons which we will give hereafter, it is not possible for us to accept the somewhat far-fetched argument of the learned counsel.
Reliance was placed on a decision of this Court in Sadiq Ali and Anr. v. Election Commission of India and Ors. where the Court observed thus:
"Art. 324 of the Constitution provides inter alia
that the superintendence, direction and control of the
preparation of electoral rolls for and the conduct of
all elections to Parliament and Legislative Assemblies
of the States and all elections to the offices of
President and Vice-President held under the
Constitution shall be vested in the Commission
Without prejudice to the generality of the
foregoing power, sub-section (2) enumerates some of the
matters for which provision may be made in the rules.
Sub-section (3) requires that the rules framed should
be laid before each House of Parliament. Conduct of
Election Rules, 1961 were thereafter framed by the
Central Government. Rules 5 of those Rules requires the
Commission to specify the symbols that may be chosen by
candidates at elections in Parliamentary and Assembly
elections and the restrictions to which that choice
shall be subject. Rule 10 makes provision for allotment
of symbols to the contesting candidates by the
Returning officer subject to general or special
directions issued by the Commission."
The first part of the above observations merely repeats the language of Art. 324 but the second part clearly shows that the power under Art. 324 is conditioned by the Rules made by the Central Government for the conduct of all elections. These observations, therefore, do not appear to us to be of any assistance to the stand taken by the appellant.
Reliance was also placed on the following observations in the said case:
"Question then arises as to what is the binding
nature of the decision given by the Commission under
paragraph 15 In this respect, it has to be borne in
mind that the Commission only decides the question as
to whether any of the
rival sections or groups of a recognised political
party, each of whom claims to be that party, is that
party. The claim made in this respect is only for the
purpose of symbols in connection with the elections to
the Parliament and State Legislatures and the decision
of the Commission pertains to this limited matter."
These observations also do not advance the matter any further because it was clearly held that the claim made in respect of symbols pertained only to the limited matter which was being considered by the Commission. The following observations of this Court in that case completely clinch the issue against the appellant:
"It would follow from what has been discussed
earlier in this judgment that the Symbols order makes
detailed provisions for the reservation, choice and
allotment of symbols and the recognition of political
parties in connection therewith. That the Commission
should specify symbols for elections in Parliamentary
and assembly constituencies has also been made
obligatory by rule 5 of Conduct of Election Rules."
(Emphasis supplied)
Thus, it is manifestly apparent from this decision that the rule-making power of the Commission under the Act, with respect to symbols, would have to prevail over any order that it may pass and the words "conduct of elections" would not make the Commission a purely legislative body.
Another case on which great reliance was placed is: Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. In this case, it was held that an order passed by a statutory functionary on certain specific grounds cannot be supplemented by external evidence like affidavits or otherwise. This case also nowhere lays down that the Commission possesses plenary powers-both executive and legislative-in the guise of conduct of elections. One of the main questions posed by Krishna Iyer, J speaking for the Court, was as follows:
"Can the Election Commission, clothed with the
comprehensive functions under Article 324 of the
Constitution, cancel the whole poll of a constituency
after it has been
held, but before the formal declaration of the result
has been made, and direct a fresh poll without
reference to the guidelines under ss. 58 and 64(a) of
the Act, or other legal prescription or legislative
backing. If such plenary power exists, is it
exercisable on the basis of his inscrutable ’subjective
satisfaction’ or only on a reviewable objective
assessment reached on the basis of circumstances
vitiating a free and fair election and warranting the
stoppage of declaration of the result and directions of
a fresh poll not merely of particular polling stations
but of the total constituency?"
The learned Judge while answering the question observed thus:
"Article 324, which we have set out earlier, is a
plenary provision vesting the whole responsibility for
national and State elections and, therefore, the
necessary powers to discharge that function. It is true
that Art. 324 has to be read in the light of the
constitutional scheme and the 1950 Act and the 1951
Act. Sri Rao is right to the extent he insists that if
competent legislation is enacted as visualized in
Article 327 the Commission cannot make himself free
from the enacted prescriptions. And the supremacy of
valid law over the Commission argues itself. No one is
an imperium in imperio in our constitutional order. It
is reasonable to hold that the Commissioner cannot defy
the law armed by Art. 324. Likewise, his functions are
subject to the norms of fairness and he cannot act
arbitrarily. Unchecked power is alien to our system..
Article 324, in our view, operates in areas left
unoccupied by legislation and the words
’superintendence, direction and control’ as well as
’conduct’ of all elections’ are the broadest terms."
The observations, extracted above, furnish a complete answer to the arguments of Mr. Jethmalani and Mr. Asoke Sen as it has been clearly held that Art. 324 would operate only in areas left unoccupied by legislation, even if the widest possible connotation is given to the language of Art. 324. While summarizing the propositions, the Court made the following observations:.
"Two limitations at least are laid on its plenary
character in the exercise thereof. Firstly, when
Parliament or any State Legislature has made valid law
relating to or in connection with elections, the
Commission shall act in conformity with, not in
violation of such provision but where such law is
silent Art. 324 is a reservoir of power to act for the
avowed purpose of, not divorced from pushing forward a
free and fair election with expedition. Secondly, the
Commission shall be responsible to the rule of law, act
bona fide and be amenable to the norms of natural
justice in so far as conformance to such canons can
reasonably and realistically be required of it as
fairplay-in-action in a most important area of the
constitutional order, viz., elections."
This is actually the main spirit and gist of the decision which appears to have been relied upon by the appellant but which does not at all support his stand. In the aforesaid case, there did not appear to be any conflict between the order passed by the Commission and the Act or the Rules. The question at issue in the instant case did not really arise in the form and shape as has been presented before us. On the other hand, the matter seems to have been fully settled by an earlier decision of this Court in N.P. Ponnuswami v. Returning officer, Namakkal Constituency and ors. where Fazal Ali, J. (as he then was) while making a very pointed and crisp approach, scientifically analysed the position thus:
"Broadly speaking, before an election machinery
can be brought into operation, there are three
requisites which require to be attended to, namely, (1)
there should be a set of laws and rules making
provisions with respect to all matters relating to, or
in connection with, elections, and it should be decided
as to how these laws and rules are to be made; (2)
there should be an executive charged with the duty of
securing the due conduct of elections; and (3) there
should be a judicial tribunal to deal with disputes
arising out of or in connection with elections.
Articles 327 and 328 deal with the first of these
requisites, Art. 324 with the second and article 329
with the third requisite. The other two articles in
Part XV, viz., articles 325 and 326, deal with two
matters of principle to which the Constitution-framers
have attached much importance. They are:-(1)
prohibition against discrimination in the preparation
of, or eligibility for inclusion in, the electoral
rolls, on grounds of religion race, caste, sex or any
of them; and (2) adult suffrage. Part XV of the
Constitution is really a code in itself providing the
entire ground-work for enacting appropriate laws and
setting up suitable machinery for the conduct of
elections."
We fully endorse and follow the above observations of the Constitution Bench which lay down the correct law on the subject and we have nothing further to add to the approach made by this Court in the case referred to above. On the other hand, our view that Arts. 324 to 329 have to be construed harmoniously flows as a logical corollary from the ratio in Ponnuswami’s case.
The pointed an pungent observations extracted above, really amount to a Bible of the election law as culled out from an interpretation of the provisions of Arts. 324 to 329 of the Constitution, and were referred to with approval even in Mohinder Singh Gill’s case (supra). During the last three decades this case has neither been distinguished nor dissented from and still holds the field and with due respect, very rightly. No other case ever made such a dynamic and clear approach to the problem, perhaps due to the fact that no such occasion arose because the Commission has always been following the provisions of the Act and the Rules and had never attempted to arrogate to itself powers which were not meant to belong to it. Indeed, if we were to accept the contention of the respondents it would convert the Commission into an absolute despot in the field of election so as to give directions regarding the mode and manner of elections by passing the provisions of the Act, and the Rules purporting to exercise powers under cover of Art, 324. If the Commission is armed with such unlimited and arbitrary powers and if it ever happens that the persons manning the commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of electoral process, so important and indispensable to the democratic system.
Further, such an absolute and uncanalised power given to the Commission without providing any guidelines would itself destroy the basic structure of the Rule of Law. It is manifest that such a disastrous consequence could never have been contemplated by the Constitution makers, for such an interpretation, as suggested by the counsel for the respondent, would be far from attaining the goal of purity and sanctity of the electoral process. Hence, we must construe Arts. 324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Arts. 324 to 329 would reveal that the legislative powers in respect of matters relating to Parliament or the State Legislatures vests in Parliament and in no other body. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures. Furthermore, the power under Art. 324 relating to superintendence, direction and control was actually vesting of merely all the executive powers and not the legislative powers. In other words, the legislative power of Parliament or of the legislature of a State being made subject to Art. 324 only means that no law made by Parliament under Art. 327 or by a State legislature under Art. 328 can take away or deprive the Commission of the executive power in regard to matters entrusted to it, viz. superintendence, direction and control of elections. The right to file an election petition directly flows from Art. 329 and cannot be affected in any manner by the exercise of executive power by the Commission under Art. 324.
In view of the above, it is not necessary for us to consider a number of other authorities that were cited before us as they do not appear to be directly on point.
It is pertinent to indicate that the High Court fell into an obvious fallacy by acceptance of the position that the direction of the Commission was intended to operate in an uncovered field. When the Act and the Rules, prescribed a particular method of voting, the Commission could not innovate a new method and contend that use of the mechanical process was not covered by the existing law and, therefore, did not come in conflict with the law in the field.
To sum up, therefore, the legal and constitutional position is as follows:
(a) When there is no Parliamentary legislation or rule
made under the said legislation, the Commission is
free to pass any orders in respect of the conduct
of elections.
(b) where there is an Act and express Rules made
thereunder it is not open to the Commission to
override the Act or the Rules and pass orders in
direct disobedience to the mandate contained in
the Act or the Rules. In other words, the powers
of the Commission are meant to supplement rather
than supplant the law (both statute and Rules) in
the matter of superintendence, direction and
control as provided by Art. 324,
(c) where the Act or the Rules are silent, the
Commission has no doubt plenary powers under Art.
324 to give any direction in respect of the
conduct of election, and
(d) where a particular direction by the Commission is
submitted to the government for approval, as
required by the Rules, it is not open to the
Commission to go ahead with implementation of it
at its own sweet will even if the approval of the
Government is not given.
Apart from the arguments referred to above, an alternative argument put forward before us was that even the Rules framed under the Act authorise the Commission to give direction to hold voting by the use of a voting machine and this is covered by s. 59 of the Act and Rule 49 of the Rules. This argument merits serious consideration. In the instant case, the main grievance of appellant is that the voting by mechanical process was not permissible either under the Act or under the Rules. Reliance was, however, placed by the appellant on s.59 of the Act which runs thus:
"59. Manner of voting at elections-
At every election where a poll is taken votes
shall be given by ballot in such manner as may be
prescribed, and no votes shall be received by proxy."
It is obvious that s. 59 uses the words "ballot in such manner as may be prescribed", which means prescribed by the Rules made under the Act. A reference to s. 61 of the Act would show that Parliament intended use of ballot paper only for casting of votes. This takes us to rule 49, the relevant part of which may be extracted thus:
"49. Voting by ballot at notified polling
stations-
(1) Notwithstanding any thing contained in the
preceding provisions of this Part, the Election
Commission may, by notification published in the
official Gazette at least 15 days before the date, or
the first of the dates, of poll appointed for an
election, direct that the method of voting by ballot
shall be followed in that election at such polling
stations as may be specified in the notification."
It was submitted that having regard to the modern and changing conditions of the society a dynamic approach should be made to the interpretation of the aforesaid two legal requirements. The matter does not rest here: something could be said for the view that the word ’ballot’ includes voting by machines. Section 59 proceeds to explain its intention in setting up the mode, manner and method of voting by prescribing express rules as to how the voting should be done. In this connection, reference may be made to Rule 22 which relates to the form of ballot paper and its contents. Rule 23 requires the Returning officer to record on the counterfoil of the ballot paper the electoral roll number of the elector as entered in the marked copy of the electoral roll. Rule 27 refers to the return of ballot paper after an elector has recorded his vote or made his declaration. Rule 30, which prescribes the contents of ballot papers, is completely contrary to the concept of ballot by machine. Similarly, Rules 33, 38, 39 and 40 seem to be wholly inconsistent with the mechanical process but seem to adopt the conventional method. As we have already indicated, these Rules are binding on the Commission and it cannot by an executive fiat either override them or act contrary to the statutory provisions of the Rules.
On a proper and detailed analysis of these Rules it is clear that the Act by framing the Rules completely excluded the mechanical process which, if resorted to, would defeat in a large measure the mandatory requirements of the Rules.
It is a well settled rule of interpretation of statutes that words, phrase or sentences of a statute should ordinarily be understood in their natural, ordinary, popular and grammatical sense unless such a construction leads to absurdity. Mr. Jethmalani argued that the word ’ballot’ is wide enough to include the mechanical process and, therefore, the direction of the Commission falls squarely within the four corners of both s. 59 and Rule 49. Reliance was placed on the dictionary meaning of the word ’ballot’ which has been defined in Black’s Law Dictionary (Fourth Edn.) at page 182 thus:
"means act of voting, usually in secret, by balls
or by written or printed tickets or slips of paper; the
system of voting by balls or tickets, or by any device
for casting or recording votes, as by voting machine."
In Stroud’s Judicial dictionary (Third Edn.), however, ’ballot’ means "votes recorded-all ballot papers put into the ballot boxes by the electors (p. 3239)". Stroud therefore, does not subscribe to the view of casting of vote through a voting machine and we agree with this view because casting of votes by machine is a mechanical process, which has come into existence long after the Act was passed and is not generally invoked in most of the democratic countries of the world.
Concise Oxford dictionary defines the word ’ballot’ thus:
"(usu. secret) voting, small ball, ticket or paper used
in voting; votes so recorded; lot-drawing."
In Webster’s Third New International Dictionary (Vol. 1) at page 168 ’ballot’ is defined thus:
"to obtain a vote from (a body of voters) (the men on
the proposal), to select by ballot or by the drawing of
lots."
It may be mentioned here that the word ’ballot’ has been derived from the word ’ballot’ which existed at a time when there was no question of any system of voting machine. Even in 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. In these circumstances, therefore, we are constrained to hold that the word ’ballot’ in its strict sense would not include voting by the use of voting machines. Legislatures must be deemed to be aware of the modern tendencies in various democratic countries of the world where the mechanical system has been introduced and if despite the plain meaning of the word ’ballot’ they did not choose to extend the definition given as far back as 1950, it may be safely presumed that the Parliament intended to use the word ’ballot’ in its popular rather than a technical sense. Our view finds a good deal of support from the circumstance that even though the system of voting by mechanical process was submitted to the Government for approval yet the same was declined which shows that the rule making authority was not prepared to switch over to the system of voting by machines, perhaps on account of the legal bar as indicated by us.
It is rather unfortunate that the Union of India which is a party to this case, has taken a very neutral stand by neither supporting nor opposing the direction given by the Commission.
Having regard to these circumstances, therefore, we are clearly of the opinion that according to the law as it stands at present, the order of the Commission directing casting of ballot by machines in some of the polling stations, as indicated above, was without jurisdiction and could not have been resorted to.
It was further pointed out by the respondent that the process of voting by machines is very useful as it eliminates a number of drawbacks and expedites, to a great extent, the declaration of the result of the election by eliminating the process of counting of votes from the ballot boxes. On the other hand, the appellant has pointed out a number of defects, some of them being of a vital nature, which would defeat the electoral process. We would now indicate some of the apparent defects which were pointed out to us by the counsel for the appellant after giving a demonstration of the voting machine before us:
"The absence of a provision for identifying the
candidate for whom a void vote has been cast-
(a) by impersonating a dead voter,
(b) by impersonating an absentee voter,
(c) by the genuine voter who tenders a vote after
a vote has been cast in his name by an
impersonator (R. 42),
(d) where a vote is void having been cast after
closing time (R. 43)
(e) where the voter has cast votes in more than
one booth in the same constituency [s.
62(2)],
(f) where the voter has cast two votes in two
constituencies [s. 63(3)],
(g) where the voter is disqualified under s. 16
of the Act [s. 62(4)],
(h) where an elector marks a ballot paper wrongly
for a candidate, he loses the right to get a
fresh ballot paper for casting his vote
correctly (R.41).
The provisions of S. 100(1)(d) and more so S. 101(a)
and (b) under which by excluding the void votes or
votes cast as a result of corrupt practices any other
candidate can be declared duly elected as the true
representative of the constituency."
On the other hand, a number of advantages which could be obtained by using the mechanical process were pointed out by the respondent, the sum and substance of which was that despite some defects the electoral process would be expeditious and would cut out a number of delays or mistakes committed at various stages. The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time or the other, to give legal sanction to the direction given by the Commission. For these reasons, it is not necessary for us to go into the very detailed notes of arguments submitted by the parties in respect of this aspect of the matter.
Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same .
For the reasons given above, we allow the appeal, set aside the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a repoll to be held in these 50 polling stations. We, however, do not touch or disturb the results of the votes secured in the other 34 polling stations which was done in accordance with law, viz., the use of ballot papers. After the repoll, the result of the election would be announced afresh after taking into account the votes already secured by the candidates, including the Respondent. We make no order as to costs.
In course of argument, Mr. Sen for the Commission informed us that at eleven elections held under the Act, the mechanical device was used and in nine, no challenge has been raised. It follows that our judgment will not affect those nine elections in any manner. N.V.K. Appeal allowed.