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

FACTS3. A plurality of five candidates ran for the 12 Sangrur Parliamentary seat in Punjab in the General Elections held in March 1971. (Sad that we are in 1975, interlocutory litigative episodes having spun to such length despite only a simple issue of recount being involved in the whole case): The only two contestants who hotly and hopefully battled for success were the petitioner-appellant, the candidate of the Akali Dal and respondent No. 1, the nominee of the Communist Party of India. The total votes polled were of the order of 3,44,073 of which 7,663 ballots were invalidated. The tiny margin of 210 votes, by which respondent No. 1 was declared successful, apparently appetised the appellant into attacking the methodology, arithmetic and impartiality of the count and, indeed, the High Court went half-way with him on this score, as we will presently discuss. Even at the time the counting was completed on 12-3-1971 the petitioner presented an application to the Returning officer demanding; a recount. On some minor technical ground the application was held premature, the formalities of completing Form 20 not having been gone through. However, soon after the announcement of the votes polled by each candidate under sub-rule (1) of Rule 63 of the rules, the petitioner made a second, timely, application for recount under sub-rule (2) of that rule. The Returning Officer, however, rejected this application also although here were set out several grounds, some of which are tile same as those urged in the election petition itself. The petitioner, however, moved the Election Commission for a recount under sub-rule (1) of Rule 93. The Commission having been satisfied that the inspection, as prayed for by the appellant, is necessary to further the ends of justice without, at the same time, violating the secrecy of the ballot directed the District Election Officer of Sangrur District to open the sealed box of votes polled in favour of the candidates in respect of 86-Dhuri Assembly Constituency, a segment of 12-Sangrur Parliamentary constituency, and the packets containing the rejected votes of the Sangrur Parliamentary Constituency and permit the appellant to inspect them. However, this operation was not gone through since the High Court, when moved by writ petition, stayed the order of the Commission, and, thereafter, a regular election petition was filed where the whole focus was turned on the issue of recount. The various grounds warranting a recount put forward by the petitioner were duly denied by the 1st respondent. The limited recount of one of the segments of the Parliamentary Constituency, namely, Sherpur was allowed by the High Court and affirmed by a consent order by this court, amplifying the recount to cover the votes of both the contestants. This revealed some errors but did not produce the desired result of tilting the scales and the petitioner pressed fur a wholesale recount alleging serious infirmities which we will presently refer to.4. The petitioner has set out as full a statement as he could of the material facts and particulars on which he relied in his election petition. The prejudicial, features about the telling process were both general and segmentwise. Let us take a look at them. The Akali Dal was the ruling party and the subordinate services had pressed militantly for increased dearness allowance and the State Government alleged to have rejected the plea even for interim relief, with alleged hostile repercussions;"The hostile attitude of the Subordinate Services Federation and its employees against the Punjab Government and the ruling party of which the Petitioner was candidate had prompted the counting assistants and the counting supervisors at different stations to act male fide, arbitrarily and discriminately in the scrutiny, counting and bundling of the votes at the different centres and it was for this reason that whereas the Petitioner had received a majority of votes but in the counting of the votes which was done in an unfair unjust, illegal and male fide manner, the Returning Officer, Shri C. D. Cheema, declared respondent No. 1 elected though in fact he had not secured majority of votes. Prompted by the same animus,"the counting agents of the petitioner were not allowed any opportunity to inspect and note the serial numbers of the ballot papers which had been either illegally rejected though in fact polled in favour of the petitioner or wrongfully accepted and counted in favour of the returned candidate. This request of the counting agents of the petitioner was turned down on the plea of secrecy of votes and the counting agents were told by those assistants and other staff that they had been directed not to allow any counting agents or candidate to know or note flown the serial members of the ballot papers."5. Admittedly, certain reforms had been made in the manner of mixing all the ballot papers and the mechanics of Counting and bundling. The serial number of the ballot was no longer printed on its face but on the reverse which disabled identification of the said member by the telling agents of the candidates. These mutations in methodology were motivated by the need to secure better the secrecy of the vote, a sanctified principle of free elections, and applied to the whole country. But if the petitioner was aggrieved that his men could not note the serial numbers and the new method threw hurdles in the way of proper check by the telling agents of the scrutiny of the voting paper.6. The election petitioner (vide para 9 of the petition) proceeded to particularise the prejudice he suffered, Assembly constituency wise, and claimed that the result of the poll had been materially and adversely affected thereby. He has specified distinct and different grounds regarding the various segments or Assembly constituencies and naturally he cannot telescope of mix up these distinct mischief or mistakes or switch grounds from one to the other. We will examine the omnibus criticisms and special come plaints voiced in the petition against the background of a brooding fear of a negligible lead the 1st respondent had obtained as being possibly due to unwitting error in the considerable continuous counting simultaneously on several tables, in environment not altogether tranquil.7. The petitioner levelled many general accusations, apart from bias of the counting staff, about the whole process of counting and has examined P. W. 5, the Returning Officer, to substantiate these infirmities. The witness did candidly admit that he did not do any 5 per cent test-check or any other random count. Had he been faithful to the instructions in the Handbook of Instructions issued, he might have acted differently. For, the instructions contained in Clause (nn) of para 17 of the Procedure for Counting given at p. 74 of the Handbook for Returning Officers, runs thus :"To ensure further accuracy in the counting of votes, five per cent of the total number of bundles of valid ballot papers of the different contesting candidates shall be counted by you. You will make your selection of this five per cent in such a manner that it contains bundles containing (pertaining) to the different contesting candidates."8. P. W. 5 was unmindful of this guideline, which was a faux pas. While we are not disposed to direct a recount solely on the basis of this peccadillo, we stress the need for strict adherence to instructions calculated to make returns error-proof by officers concerned. Gavalier attitude or jaded indifference cannot be condoned.9. The petitioner has itemised separate infirmities in regard to each segment with inventive ability and imaginary precision. But we are not inclined to attach weight to these seeming grievances in the light of P. W. 5s clear testimony that barring the requests for recount no complaint of any count was voiced before me by anyone in connection with the counting of votes. Indeed, he added : no complaint regarding any official was received from the Akali party during the election campaign in this constituency. Disposed, as we are, to accept this evidence, we find no force in the petitioners bewailing about official bias and violation of rules. One complaint which needs mention is that the counting officials declined to disclose the serial numbers of voting papers which were objected to. It is true that there is a clear departure in the present system, recently introduced, whereby serial numbers are printed on the reverse so as not to be visible on the face. This is intended to ensure secrecy of the ballot. May be that in consequence candidates who challenge illegal rejection or reception of votes may not be able to furnish the serial numbers of the ballot papers in their election petitions or elsewhere. Some rulings of this Courtbased on the earlier practice of printing serial numbers had indicated the need to give these numbers to persuade the Court to grant a recount. The change in the method of printing the serial numbers obviously makes it difficult to observe what is at the back of the paper and we agree at this omission cannot go against an otherwise well-grounded request for inspection of ballots by Court. Judicial approach must be readjusted to the new ballot printing. But the question is, has the appellant rested his bare wish on other telling testimonial basis none that we can discern. Nor can the reform in the numbering on the back of the ballot the a reason for recount. Several issues were struck and an enormous volume of evidence came on record around the core demand for recount and the Returning Officer, a key witness in the case, P. W. .5, was also examined. We have the additional circumstance of an application for an interim count which was allowed partially with reference to Sherpur constituency (a segment of the concerned parliamentary constituency). While many issues relate to some facet or other of the flaws in the counting, the highlight of the discussion by the trial Court was around issue No. 6 :"Is the petitioner entitled to inspection, scrutiny and recount of the ballot papers and, if so, to what extents?"The interlocutory order really covered the crucial issue aforesaid. The Court held that a case for inspection and scrutiny of votes bad been mule out and observed :"Issue No. 6 is, accordingly, found in the petitioners favour and the interests of justice require that the inspection and scrutiny prayed for be allowed."Although this might appear to be widely worded, the Court has confined the scope of this recount by a cautious direction :-"...........since the petitioners allegation with regard to the rejection of such votes which do not bear the prescribed signature is confined to the Sherpur Assembly constituency alone and the number of such votes is stated to be 450........I consider it expedient at this stage to inspect and scrutinise only the petitioners rejected votes relating to that segment of the parliamentary constituency.As earlier noticed, on appeal to the Supreme Court, the inspection and scrutiny was widened to cover the rejected ballots of both candidates.10. The main ground which appealed to the High Court in making this order for a fresh inspection, scrutiny and recount of the Sherpur segment was the alleged illegal rejection of votes on the score that the signature of the Presiding Officer was absent on the ballot paper. The Court construed R. 56 of the Rules in the light of Rule 38 and took the view that the ballot paper shall not be rejected merely on the ground of such a formal defect as the accidental omission of the signature of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertence or lapse of the Presiding Officer or the Polling Officer. This approach is sound in law and a recount was rightly undertaken. However, the member of totally rejected ballot papers of all the candidates when subjected to a repeated scrutiny yielded disappointing results from the point of view of the-petitioner. Out of 1096 rejected ballot papers only 17 claimed by the petitioner and 7 by the 1st respondent were found faulty. One of the rejected papers of the petitioner was mutilated and its rejection was thus justified. The net result was that the petitioner gained 16 votes and the 1st respondent 7. The lead being only 9, proved colourless so far as the conclusion was concerned. Undaunted by the flimsy difference, the petitioner hopefully urged that the other segments of the Parliamentary constituency should be similarly put through a second inspection and recount. The basis being jejune, the learned Judge declined the request. However, the general contentions raised by the petitioner about the unfair counting and biased processing were examined by the High Court. Those contentions were :1. The attitude of the counting staff was hostile to the petitioner and his party.2. The petitioners votes were rejected for want of the mark or signature prescribed under Section 83, while similar votes of the respondent Teja Singh Swatantra were accepted.3. That the votes of the petitioner were wrongfully put in the bundles of the respondent No. 1 to inflate his count.4. That a number of votes marked in favour of the petitioner were rejected simply because they were smudged due to folding of ballot papers.5. That some of the votes counted for the contesting respondent were invalid because of multiple markings while others were mutilated and the markings thereon did not clearly indicate for whom they had been cast."

Reasoning:
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.