il Appeals Nos 213A and 213B of 1953
Appeals by Special Leave against the Judgment and Order dated the 24th June 1953 of the Election Tribunal Ludhiana in Election Petition No 153 of 1952
C K Daphtary Solicitor General for India Harbans Singh Doabia and Rajinder Narain with him for the appellant in Civil Appeal No 213A Tilak Raj Bhasin and Harbans Singh for respondent No 2 in Civil Appeal No 213A and the appellant in Civil Appeal No 213B Naunit Lal for respondents Nos 3 and 19 in both the appeals
May 21
The Judgment of the Court was delivered by BOSE J
These are two appeals against the decision of the Election Tribunal at Ludhiana
The contest was for two seats in the Pun jab Legislative Assembly
The constituency is a double member constituency one seat being general and the other reserved for a Scheduled Caste
The first respondent is Atma Ram
He was a candidate for the reserved seat but his nomination was rejected by the Returning Officer at the scrutiny stage and so he was unable to contest the election
The successful candidates were Rattan Anmol Singh the appellant in Civil Appeal No 213 A of 1953 for the general seat and Ram Prakash the appellant in Civil Appeal No 213 B of 1953 for there served
Atma Ram filed the present election petition
The Election Tribunal decided in 483 his favour by a majority of two to one and declared the whole election void
Rattan Anmol Singh and Ram Prakash appeal here
The main question we have to decide is whether the Returning Officer was right in rejecting the petitioner s nomination papers
The facts which led him to do so are as follows
The Rules require that each nomination paper should be subscribed by a proposer and a seconder
The petitioner put in four papers
In each case the proposer and seconder were illiterate and so placed a thumb mark instead of a signature
But these thumb marks were not attested
The Returning Officer held that without attestation they are invalid and so rejected them
The main question is whether he was right in so holding
A subsidiary question also arises namely whether assuming attestation to be necessary under the Rules an omission to obtain the required attestation  amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 364 of the Representation of the People Act 1951 XLIII of 1951
Section 331 of the Act requires each candidate to deliver to the Returning Officer a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in sub section 2 as proposer and seconder
 Sub section 2 says that any person whose name is registered etc may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled 
The controversy centers on the word subscribed which has not been defined in the Act
The prescribed nomination form referred to in subsection 1 of section 33 is to be found in Schedule II
In this form we have the following 9
Name of the proposer 12
Signature of the proposer 484 13
Name of the seconder      16
Signature of the seconder
 The Oxford English Dictionary sets out thirteen shades of meaning to the word subscribe most of them either obsolete or now rarely used
The only two which can have any real relation to the present matter are the following 1 To write one s name or mark on originally at the bottom of a document especially as a witness or contesting party to sign one s name to
 This meaning is described as rare 2 To sign one s name to to signify assent or adhesion to by signing one s name to attest by signing This appears to be its modern meaning and is also one of the meanings given to the word sign namely to attest or confirm by adding one s signature to affix one s name to a document late One also finds the following in Stroud s Judicial Dictionary 3rd edition Subscribe
1 Subscribe  means to write under something in accordance with prescribed regulations where any such exist But though this is the strict primary meaning of the word it may sometimes eg in the attestation of a will be construed as to give assent to or to attest  or written upon 3 Subscription is a method of signing it is not the only method  a stamped or other mechanical impression of a signature is good in the case of electioneering papers  It is clear that the word can be used in various senses to indicate different modes of signing and that it includes the placing of a mark
The General Clauses Act also says that  sign  with reference to a person who is unable to write his name includes mark  But this is subject to there being nothing repugnant in the subject or context of the Act
In our opinion the crux of the matter lies there
We have to see 485 from the Act itself whether sign and subscribe mean the same thing and whether they can be taken to include the placing of a mark
The majority decision of the Tribunal holds that sign and subscribe are not used in the same sense in the Act because a special meaning has been given to the word I sign and none to the word subscribe therefore we must use subscribe in its ordinary meaning and its ordinary meaning is to sign but not to sign in the special way prescribed by the Act but in the ordinary way therefore we must look to the General Clauses Act for its ordinary meaning and that shows that when it is used in its ordinary sense it includes the making of a mark
We agree with the learned Chairman of the Tribunal that this is fallacious reasoning
The General Clauses Act does not define the word subscribe any more than the Representation of the People Act and if it is improper to exclude the special meaning given to  sign  in the Representation of the People Act because the word sign  is defined and not  subscribe it is equally improper to import the special definition of  sign  in the General Clauses Act because that also defines only sign and not subscribe and also because the  subject  and  context  of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differently
The learned counsel for the respondent analysed the Act for us and pointed out that the word  subscribe  is only used in Chapter I of Part V dealing with the Nomination of Candidates while in every other place the word  sign  is used
We do not know why this should be unless as was suggested by the learned Solicitor General the Legislature wished to underline the fact that the proposer and seconder are not merely signing by way of attesting the candidate s signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch also that the candidate s signature imports more than a mere vouching for the accuracy of the 486 facts entered in the form
It imports assent to his nomination
We think the learned Solicitor General is probably right because section 33 speaks of a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination But however that may be itis evident from the form that  signatures are required
It is also evident from the definition of sign  that the Legislature attached special importance to the fact that in the case of illiterate persons unable to write their names it is necessary to guard against misrepresentation and fraud by requiring that their signatures should be formally authenticated in a particular way
A special statutory cloak of protection is thrown around them just as the ordinary law clothes pardanish in women and illiterate and ignorant persons and others likely to be imposed on with special protective covering
Now it is to be observed that section 2 calls itself an interpretation  section
It says  1 In this Act unless the context otherwise requires         k sign  in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed
 It is evident then that wherever the element of signing  has to be incorporated into any provision of the Act it must be construed in the sense set out above
Therefore whether  subscribe  is a synonym for  sign  or whether it means  sign  plus something else namely a particular assent the element of  signing  has to be present the schedule places that beyond doubt because it requires certain  signature
 We are consequently of opinion that the  signing whenever a  signature  is necessary must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules
Whether this attaches exaggerated importance to the authorisation is not for us to decide
What is beyond 487 dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases
We are therefore bound to give full affect to this policy
Now if  subscribe  can mean both signing so called and the placing of a mark and it is clear the word can be used in both senses then we feel that we must give effect to the general policy of the Act by drawing the same distinction between signing and the making of a mark as the Act itself does in the definition of sign
 it is true the word subscribe is not defined but it is equally clear when the Act is read as  a whole along with the form in the second schedule that subscribe can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of  signature  are to be made we are bound to give effect to ft
In the case of a person who is unable to write his name his  signature  must be authenticated in  such manner as may be pres cribed
 The prescribed manner is to be found in rule 22of the Representation of the People Conduct of Elections and Election Petitions Rules 1951
It runs as follows   For the purposes of the Act or these rules a person who is unable to write his name shall unless otherwise expressly provided in these rules be deemed to have signed an instrument or other paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person
 In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names
The four nomination papers we are concerned with were not  signed  by the proposers and seconders in the usual way by writing their names and as their marks are not attested it is evident that they have not been  signed  in the special way which the Act 488 requires in such cases
If they are not  signed  either in one way or the other then it is clear that they have not been  subscribed  because  subscribing  imports a signature and as the Act sets out the only kinds of signatures which it will recognise as II signing for the purposes of the Act we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers
The Returning Officer was therefore bound to reject them under section 362d of the Act because there was a failure to comply with section 33 unless he could and should have had resort to section 364
That sub section is as follows
The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character
 The question therefore is whether attestation is a mere technical or unsubstantial requirement
We are not able to regard it in that light
When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there
The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making _a mark in place of writing a signature
If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time the matter might be different because the element of his satisfaction at the proper time which is of the substance would be there and the omission formally to record the satisfaction could probably in a case like that be regarded as an unsubstantial technicality
But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether
In our opinion this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the II subscribing  required in the case of the candidate himself If there is no signature and no mark the form would have to be rejected and their 489 absence could not be dismissed as technical and unsubs tantial
The satisfaction  of the Returning Officer which the rules require is not in our opinion any the less important and imperative
The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage
It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage
The Returning Officer denies this but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been
Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been  any failure to comply with any of the provisions of section 33  
The only jurisdiction the Return ing Officer has at the scrutiny stage is to see whether the nominations are in order and to hear and decide objections
He cannot at that stage remedy essential defects or permit them to be remedied
It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect
He must leave it as it is
If it is technical and unsubstantial it will not matter
If it is not it cannot be set right
We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers
The appeals are allowed with costs and the order of the Election Tribunal declaring the elections of the two successful candidates to be wholly void is set aside
The election petition is dismissed also with costs


Summary:
Under section 331 of the Representation of the People Act 1951 each nomination paper should be subscribed by a proposer and a seconder
Where the proposer and the seconder of a nomination paper as in the present case are illiterate and so place thumb marks instead of signatures and those thumb marks are not attested the nomination paper is invalid as attestation in the prescribed manner in such a case is necessary because of rule 22 of the Representation of the People Conduct of Elections and Election Petitions Rules 1951 which requires it
Signing whenever signature is necessary must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules
62 482 Attestation is not a more technical or unsubstantial requirement within the meaning of section 364 of the Act and cannot be dispensed with
The attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated at the scrutiny stage any more than the omission of a candidate to sign at all could have been
Section 36 of the Act is mandatory and enjoins the Returning officer to refuse any nomination when there has been any failure to comply with any of the provisions of section 33