Case: Rattan Anmol Singh &amp; Another Vs. Atma Ram &amp; Others

between singing 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 it. In the case of a person who is unable to write his name his signature must be authenticated in such manner as may be prescribed. The prescribed manner is to be found in Rule 2 (2) of 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. 13. 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 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 is will recognise as singing 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 36 (2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4). 14. 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 satisfaction 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 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 there absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the Rules require is not, in our opinion, any the less important and imperative. 15. 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 attention 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 Returning Officer has at the security 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; 16. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers.

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

Explanation:
1[ds]In our opinion, the crux of the matter lies there. We have to see 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 sign and none to the word subscribe, therefore, we must use ordinary meaning is to sign but not to sign the ordinary way8. 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 equal 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 differentlyWe 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 singing by way of attesting the candidates 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 candidates signature imports more than a mere vouching for the accuracy of the facts entered in the form. It imports assent to his nomination. We think the learned Solicitor-general is probably right because Section 33 speaksa nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nominationIt is evident then that whatever the element of signing. It is evident then that wherever the element of singing has to be incorporated into any provision of the Act it must be construed in the sense set out aboveTherefore, whether subscribe is a synonym for sign or whether it means sign plus something else, namely, a particular assent, the element of singing has to be present; the Schedule places that beyond doubt because it requires certain signatures. 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 the authorization is not for us to decide. What is beyond 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 effect to this policyIn 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 names13. 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 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 is will recognise as singing 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 36 (2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4)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 satisfaction 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 technicalityBut 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 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 there absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the Rules require is not, in our opinion, any the less important and imperativeIt 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 attention 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 beenThe only jurisdiction the Returning Officer has at the security 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;16. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers.