Case: Baldev Singh Vs. Teja Singh Swatantar (Dead) &amp; Ors

tribute to Indian ability goes to the lesser level staff - the clerks and teachers, say - who bear the mechanical brunt of the Himalayan labours. When colossal heaps of votes are processed,: the tellers may make chance. mistakes even computers are not totally error-proof and, to err is human, physically fatigued and. brain-fagged as they may be occasionally. Scrutiny by vigilant officials and test checks may be good but jaded spirits cause slips. Complacent assumption of perfection, when the operation is gigantic, is a frailty of obdurate minds. That is why realism has induced Rule 63 and issuance of instructions to returning officers, rooted in practical wisdom. Given lively realism and imaginative understanding in the Returning Officers, many honestly sceptical and legitimately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the winner, after all, has no vested interest in error and cannot reasonably object. Such is the interpretative perspective of Rule 63which has wrongly been lost sight of by P. W. 5, the Returning Officer, in the present case.18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exceptional and refusal is restricted to cases where the demand itself is frivolous or unreasonable. These are strong words. The circumstances of each case decide. Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If, as in this case, for the Sherpur segment a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand was made, would have been reasonable. If formal defects had been misconstrued at some table as substantial infirmities, or vice versa resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a - plea for a second inspection had been made on the spot. Many practical circumstances or legal misconceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial check. Of course, baseless or concocted claims for recount or fabricated grounds for inspection or specious complaints of mistakes in counting when the gap is huge are obvious cases of frivolous and unreasonable demands for recount. Mala fide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need in appropriate cases, to be reasonably liberal in re-check and recount by Returning Officers. After all, fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. Indeed, the Instructions to Officers are fairly clear and lay down sound guidelines.19. Judicial power to direct inspection and recount is undoubted but will be exercised sparingly.In a accent decision Chanda Sigh v. Shiv Ram, Civil Appeal No. 1185 of 1973, decided on 19-12-1974 = (reported in AIR 1975 SC 403 ) this Court observed:"A certain amount of stability in the electoral process is essential. If the counting of the ballots is interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only a few hundred votes as here, to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."20. This implies no break from the liberal stance we have indicated for Returning Officers. Election petitions come to court after a month and a half and ripen for trial months later and then the appeal, statutorily vested, inevitably follows. In this operation litigation which is necessarily protracted, liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, governments formed and legislatures begin to function. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still avai1able at hand and operational, is one thing, re-inspection and recount, which is an elaborate undertaking with mechanics and machinery of a specialised nature and which cannot be judicially brought into existence without an amount of time toil and expense, is a different thing. This Court has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the peoples adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the rulings of this Court, harmonise with the overall considerations of law and democracy.21. Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.

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

Explanation:
0[ds]11. The Court negatived the charges on sound grounds and we are disposed to agree. We feel, with the learned Judge, that had there been any manipulation by the counting staff the matter would have been immediately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to the Returning Officer for recount or at least in the application to the Election Commission for inspection made on March 17, 1971. Their silence really silences the grievance. Indeed, it must be stated with satisfaction that although Government officials at the subordinate level have been, time and again, going on strikes, starting agitations and making demands almost everywhere in the country, hardly any serious or widespread instance of foul play has been established in their functioning in the election process over the last span of a quarter of a century. Moreover, the contention of biased behaviour of the counting staff is nailed by the revealing accuracy disclosed in the recount of the Sherpur segment and the marginal error being more or less noticed in the case of both candidates. The activist, nonpartisan presence of senior officers to supervise the counting and deciding of disputes regarding the reception and rejection of votes etc., was a reassuring factor.The general charge of hostility of subordinate Government staff in counting is unproved, as already held. Even so, we must underscore the utmost importance of the independence, fairness and activism of the Election personnel from the Commission to the counting staff. If their discretion is sensitive to the party in power or their antipathies are inflamed during election time, the cherished parliamentary system will be the casualty. Every conscientious citizen has a public duty to desist from making reckless mud-slinging and tendentious smearing of the men who make the machinery, prompted by chimerical doubts, and there is cast a countervailing obligation on all who make up the election personnel to be knowledgeable, sensible, sympathetic, sensitive and stern to every candidate alike. Even seeming stiffness or chumming up or ignorant obstinacy will discredit the instrument.Another fatal blow to the plea for recount of other segments pressed by the petitioner-appellant needs mention. We have already stated that the petitioner, with what would appear to be uncanny intuition, stated in para 9 of his petition, details of wrongful reception of invalid votes etc. with numerical precision and wonder of observation possible under the present system of counting only by resort to resourceful fiction or extra-sensory perception. Disingenuous averments do not promote prospects of judicial recount and will he dismissed as devices to comply with requirements suggested in some ruling or other. Counsel did press before us many citations, a few of which alone we propose to refer to, the ground covered being overlapping, the law laid down, the same, and the determining role being the judicial response to the key facts of each case.In the light of what has been said above and with due regard to the findings of the High Court, we are unable to grant a recount on a comprehensivein the application to the Election Commission the plea for inspection of the used ballot papers is primarily confined to Dhuri Assembly segment and the rejected ballots of other assembly segments. Thus it is a fair inference to draw that the grievance centered round the Dhuri, segment. In regard to that plea, the averment in para 9 (a) gives details including figures, absence of seal and other irregularities like multiple marking and voting. Not a scintilla of evidence on which a court could act is present on the record prima facie to prove what has been alleged. Therefore the refusal of recount was not improper.16. This case has made us reflect anxiously on the dichotomy in the matter of recount between the counting station and the court hall. We think it necessary to elucidate the legal lines to be drawn at the two stages, as this is a fit case which calls for such demarcation.Given lively realism and imaginative understanding in the Returning Officers, many honestly sceptical and legitimately suspicious candidates who have lost the election may be stilled in their doubt by a recount, and the winner, after all, has no vested interest in error and cannot reasonably object. Such is the interpretative perspective of Rule 63which has wrongly been lost sight of by P. W. 5, the Returning Officer, in the present case.18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exceptional and refusal is restricted to cases where the demand itself is frivolous or unreasonable. These are strong words. The circumstances of each caseCourt has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the peoples adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the rulings of this Court, harmonise with the overall considerations of law and democracy.21. Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected.