Case: A. C. Jose Vs. Sivan Pillai &amp; Ors

or recording votes, as by voting machine."In Strouds 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.30. 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 Websters Third New International Dictionary (Vol.I) 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."31. It may be mentioned here that the word ballot has been derived from the word ballota 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.32. 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.33. 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.34. 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. 53(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, be 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."35. 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.36. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. This is actually the mainspirit 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 & Ors. (1952) SCR 218  , where Fazl Ali, J. (as he then was) while making a very pointed and crisp approach, scientifically analysed the positionspeaking, 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. Art.327 and 328 deal with the first of these requisites, Art.324 with the second and Art.329 with the third requisite. The other two articles in Part XV. viz., Art.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 Art.324 to 329 have to be construed harmoniously flows as a logical corollary from the ratio in Ponnuswamis case.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 Art.324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Art.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.324.22. 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.23. 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.It may be mentioned here that the word ballot has been derived from the word ballota 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.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.36. 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.