• D

A.C. JOSE

• v.

SIVAN PILLAI & QRS.

. March 5, 1984

(S. MuRTAZA FAZAL Au, A. VARAOARAJAN

ANO RA

0NOANATH MISRA, JJ.).

_Constitution of lndia-1950, Articles 324; 327 and 329. . . -

~ The Reprer'entation of te PeOple Act 1951, Section 59. - - ' ' . '

 .• The Conduct of Election Rules 1961; Rule 49 Elections-Voting-Carting . oj ballots _by use. of :electronic' machine-Whether valid Cznd legal.

Wods and P_hrases: uBal/ot'-;-Meaning of.

. .__ The first reswn4eot was elected to the State. Legislative A; embly.

Voting in the ConStituency was by the conventional method provided in the Conduct of Election Rules-1961, the votes. cast manually; 3.nd also by the mechaiiical proCess, viz., the use of 'electroniC' machines.

The appellant Challenged the _election of the first respondent: The tTial court upheld the validity of.voting by machines and held. that the first resP_Ondent was duly., elected. ,

In appeal. to -Jhis Coo; t, it was contended on behalf'of the appellal that voting by, mechanical process was not permissible either uD.der the Re-Pre.: sentation 'of the People Act 1951, or under the Conduct of Election Rules

1961.

Allowing the appea.1, . ..

HELD : 1. The order of the Election Coinmission dirCciing casting of ballots by machines in some of the polling stations, was without jurisdiCtion . and could n.othave been resorted to~ [900] _

2. When the Representation of the People Act 1951 and the Conduct of Election Rules 1961, prescribed a particular method of voting the Commllsion could not innovate a new method arid c?ntend that use of the meChani ca_l pi:ocess_wa~ not Covered.by the existing law and, therefore, did fnbt -coma.· ·.in conflict with the law in the field. The Act and the Rules complit.ely excluded the mechanial process' which,' if resorted to, wOUiddefeat in a large.· measure the mandatory requirements of the RUies. [86G, SSF]

.. . 11

' >

A.C. Josi! v. s. PiLLAi

3. (a) When there is no Parliamentary legislation orrule made under • the said legislation, the Commission is free to pas-s any orders in respect of the

CondUct of elections. [86 HJ · • . . . . . '

(b) Where there is an ACt and tber"e are express Rules made thereunder, it is not open to the Commission to Over-ride the Act or the Rules and pass Orders in direct disObedience to the mandate _contained in the Act or the Rule! • . The PowerS of the Commission are•meant to supplement rather than supPiant the Jaw (bOth statut.e 'and Rules) in the matter Of superintendence, directon_ and

Sontrol as provided by Article 324. [87 A-Bl '

(c)-- Where the Act or the Rules are silent, the Commission his no doubt plenary powers under Article 324 tO give any direction in respect of. the conduct o~ elect.ion. [87C] . . .

(d) Where a partiCular directi9n by the Commission is ubmitted to th~ governriient for approval, as rtquired by the RuleS, it .is .not open to the Commissio.n to go ahead with implemenation of it at its own sweet will even if the approval Or the Government snot given. [870] ..

4. It is a w"ell-settled rule of interpretation of 'statutes that words;

Pii.raes o! Sentences of a statute should o"rdinarily be underStood in their D 03.tural, ordinary, pOpuiar and grammatiCal sense unless such a construction - leads to absurdity. [880] · ·

5. Legisiatures must be deemedto be aware of the modern tendencies . in various den1ocratic countrie.s .. of the wo'rld where the mechanical system has -

bCen intioduced and if despite the plain nleaning of the word •ballot' they did not choose to extend the definition given as far back as- 1950, 'it may be safely, presumed

0that Parliainent intended to use the word •bJllot 9 in its popular rather_ than a technical sense. [89G] ·

6. The word •ballof _h3s been derived from the wotd 'ballota' which .existed at atime when there was no question. of any system of voting-by-·.'

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 circ~- . P-i stances the word 'ballot" in its strict sense would not include voting by the use of voting rOachines; [89FJ . . . . . .

Sadiq Ali & Anr. v. Election Commission of India & Ors • ."[1972] 2 S.C.R; 318; Mohinder Singh Gill & Anr. v. The Cheif_Election Commissioner,· New_ JH/hl & Ors,, [1978] 2- S.C.R. 272 and N.P.' Ponnuswami v. Returning Officer, Namakka/ Constituency & Ors., [1952] S.C.R. 218 i referred to. ·

 G:

. cMr. APPELLATE JURISDICTION : Civil Appal No. 3839 of 1982. - -. . . From the Judgment and• Order dated the 12th October, 1982 qf the Kerala High Court in Election Petition No. I of 1982.

' . '. . ' .

K.K. Venugopal; G. Vishwanathalyefand E.M.S. Aliam for the Appellant. . , , ..

- .

Stil'REME cbuil.r REPORTS ' [1984] 3 s.c.R.. ..

A Ram Jethamalani, M.M. AbdulKhader, Dileep Pillai and ' . M.A. Firoz for Respondent No. I.

• K.G. Bhagat, A_dd/, Sol. General and Miss A. Subhashini for

Union.

S.S. Ray, A.K. Sen and Miss A. Subhashini for the. Election Commissioner.

Ram Jethamalani and Miss Rani Jethmalani for the Intervener.

The Judgment of the Court was delivered by

f:_'

FAZAL ALI,.J.

This election appeal has been filed by. the appellant, who was a candidate for election to "No. 70 Parnr Assembly Constituency" .in Kerala but was not elected. Six candi- . dates contested .the said election which was'held on May 19, 1982, out of whom the first respondent '(Sivan Pillai), who was a candidate of the Communist Party of India, and the appellant were the •wo principal contestants. The result of the election was announced on May Z0,1982 in which the first respondent was declared elected having secured 30450 votes as against 30327 vJJtes secured by the appellant. Thus, the first respondent secured 123 more votes than the appellant. Of the 30450 votes,' 11268 were cast manually, according to-the conventional method provided in the Conduct of Election Rules, 1961 (for short, to be referred to as the 'Rules') made under the Representation of th~ People Act, 1951 (hereinafter to be referred to as the 'Act'), and 19182 v, otes were cast by means of electronic machines (for short, to be referred to as 'voting machines'.). This was done in pursuance of the directi<>n issued by the Election Commission of India (for facility, to be referred to as the 'Commission') by virtue of a notification published in the Kerala Gazatte on 13.5.82. The said notification was purported to have been made under Art. 324 of the Constitution of India, and has been extracted on pages 3 to 5 of the judgment of th_e High Court ad it is not necessary for us to -repeat the same having regard to the point of law that we have to decide in the instant case.

It may be mentioned that prior to issuing the notification the commission had sought the sanction of the Government of India which was however refused. As mentioned abov~, the votes . . ,

' '

. .

A.C. JOSE v. s. PILLAI (Fazal Ali, J.) 77

by the mechanical process were cast in. 50 out of the 85 polling . stations.

The trial Court upheld the validity of voting by machine and held that the resp.ondent was duly elected to the Assembly seat.

Hence, this appeal by the appellant.

Art. 324 of the Constitution gives full powers to the Commis sion in matters of Superintendence, direction and control of the preparation of electoral rolls and also for the conduct of elections to the Parliament and State Legislatures. It was argued that the Com-mission being a creatur~ of the Constitution itself, its plenary powers flowing directly from Art. 324 will prevail over any Act passed by the Parliament or Rules made thereunder, l!)Order to buttress this argument, it was contended that the manner of voting was a matter coming within the ambit of Arts. 324 and 327 which empowered the Parliament to make laws in respect of mters relating to or in connection. with . the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Art. 324 and if there was any conflict between a law enacted by the Parliament and . the powers given to the Cpmmission regarding regulating the conduct of elections to Parliament that law must yield to_ Art. .324, otherwise the very object of Art. 324 would be de(eated. Notice was given by this Court both to the Union of India as also the Commission though in terms of s. 82 of the Act they are not necessary parties and wete not before the High Court.

This is a very attractive argument but on a closer scrutiny and deeper deliberation on this aspect of the matter, it is not possible to read into Art. 324 .such a wicte and uncana!ised power, which is entrusted to' the Commission as Mr. Jethmalani would have us belie.; e. Part XV of the Constitution contains Arts. 324 to 328 which relate to the manner in whfrh elections are to be held, the rights of persons who are entitled to vote, preparation of electoral rolls, delimitati.on of constituencies, etc., but this is merely the storehouse of the powers and the actual exercise of thes.e powers is left to Parliament under Arts. 325 to 329. In other wrds, Art. 324 has to be read in harmony with, and not in isolat, ion of Arts. 326 to 329. Art. 324 may be extracted thus :

"324. Superintendenc.e, direction and control of

letions t1,> b~ veste~ in ~!l Elctioq Commissio!!·

SUPREME COURT REPORTS

[1984] 3 S.C.R.

( J) The superintendence, direction and control of the preparation.of the electoral rolls for, and the conduct of, all elections to Parliament and to tlie Legislature of every State and. of elections to the offices of President and Vice- President .held under t4is Constitution -shall be vested in a Commission (referred to in this Constitution as the Election Col!lmission).

(2) The Election Commission shall consist of the Chief Election Commissioner and such number of othr Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisio.ns of any law made in that behalf by Parliament, be made by the President.

(3) When any other Election Commissioner is s~ ilppointed the Chief Election Commissioner shall act a-s the Chairman of the Election Commission.

(4) 'Before each general election to the House of the People and to the 'Legislative Assembly of each St.ate, and before the first general electionand thereafter before each biennial election to the Legislative Council of each Stale having such Council, the President may also appoit after consultation with the Election Commission su.ch Regional Commissioners as he may consider necessary to assist the Election Commission in the p, erformance of the functions conferred on the Commission by clause (I).

(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure o"f office of the Election Commissioners and the Regional Commissioners shall be such as ti"\e President may by rule deterine:

Provided that the Chief Election Commissioner shall not beremoved from his office except in li!ce manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commis sioner shall not be varied to his disadvantage after his appointment.

Provided further that any other Election Commissioner or a Rc¥io!)l <;; ommisioner shall nt be' removed from

' .

A.C. JOSE v. s. PILLAi (Faza/ Ali, J,)

office except on the recommendation of the Chief Election Commissioner.

' (6) .The President, or the Governor of a State, shall when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the disvharge of the functions conferred on the Election Commission by clause(!)." •

While interpret(ng a constitutional provision we must remember the memorable words of Chief Justice Marshall :

"We must never forget that it is the Constitution which we are expounding."

Another golden rule laid down by this Court on the 'interpretation of statutes is that we should: so interpret the language of a Statute .as to suppres~ the mischief and advance the o'bject. It is true that Art. 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and

State legislatures but then the Article has to be read harmoniously with the Articles that foll<;>w and the powers that are given to the Legislatures under entry No' 72 in the Ubion List and entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to. Parliament and -the State legislatures. By no

tandards can it be said that the Commission is a third Chamber in the legislative process within the scheme of the Constitution.

Merely being a creature of the Constitution will not give it plenary and absolut~ power to legislate as it likes without reference to the Jaw enacted by the legislatures.

It was further argued that this power was necessary in order . to make the Commission an independent body and in this connection our attention was drawn to speech of Dr. Ampedkar in the

Constituent Assembly when the, qustion 'of making the Election Commission an independent body was being debated, At page 905, Constituent Assembly Debates. (Vol.8), Dr. Ambegkar ob~r ved thusi

• •


(1984] 3 S.C.R,

"But the House affirmed without any kind of dissent that in the interests. of" purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should .)le freed from any kind of interference from the executive of the day. In pursuance of the decision of the.

House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing Articles. 289, 290. and so on, Therefore, so far. as the fundament\l question is .concerned that the ele'ction machinery should be outside the control of the execu- ; tive Government, there has been no dispute. What article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparatfon of the electoral roUs and of all elections to Parliament and the Legislatures of $tates to a body outside the executive to be. called the Electfon Commission."

These observations merely show tha< the intention of the founding fathers. of our Constitution was fo make the Commission a separate and independent. body so that the election machinery may .be outside the control of the executive Government. What Dr. Ambedkar, or for that matter the founding fathers, intended was that the superinteodel!ce, direction and control of the preparation of electoral rolls and of all elections to Parliament and State .• Legislatures should be left to the Election Commission. This object has been fully carried out by the provisions in Arts. 324 to 329.

Neither the observations . of. Dr. Ambedkat nor the provisions of

F.. the Constitution could ever have intended to make the Commission an apex .. body in respect of matters relating to elections, conferring on it legislative powers ignoring the Parliament altogether.

Mr. Asoke Sen, appearing for the Commission, speaking in the same strain asMr. Jethmalani, contended that Art. 324 was a Code in itself and was couched in a very plain and simple language which adoiits of no ambiguity and, if so construed, itgives fulJ powers and authority to the Commission to give any direction in connection. with the conduct' of elections. It was further submitted that if this interpretation is not given then Arts. 325 to 329 would amount to defeating the very object which wa; wught to be achieved by Art: 324. Supporting argument was built up by

Mr. Seo by !w11vily relying upon the opeoins 'words in An. 327 to

. r, ..

• • A.O. JOSE VI s. PILLAI (Fazal Ali, J.) • 81 • the effect: "subject to the provisions of this Constitution" and

absence of any such rider in Art. 324. For the reasons which we will give hereafter, it is not possible for us to accept the somewhat far-fetched argument of the learned counsel.

Reliance was placed on a decision of this Court in Sadiq Ali and Anr. v. Election Commission of India and Ors. 1 where the Court observed tlius:

"Art. 324 of the Constitution provides inter alia. that the superintendence, direction and control of the preparation of electotal rolls for a'.nd the conduct of all elections to

Parliament and Legislative Assemblies of the States and aJ\ C • elections to the offices of P.resident and Vice'President held under the Constitution shall be vested in the Commission ...

Without prejudice to the generality of the foregoing power, sub-section (2) enumerates some of the matters for which provisioh may be made in the rules. Sub-section (3) requires that the ruies framed shoufd be laid betore each

ouse of Parliament. Conduct of Election Rules, 1961 were thereafter framed by the Central Government. Rule 5 of those Rules requires the Commission to specify the symbols that may be chosen by candidates at elections in Parliamentary hnd Assembly elections abd the restrictions to which that choice shall be subject. Rule 10 makes provision for allotment of symbols to the contesting candidates by the Returning Officer subject to general or special directions issued by the Commission," ·

The first part of the above observations merely repeats the , language of Art. 324 but the second part clearly shows that the power under Art. 324 is: conditioned by the Rules made by the Central Government for the conduct of all lections. These observations, therefore, do not appear to us to be-of any assistance to the stand taken by the appellant. • .

Reliance was also placed on the following observations in the said case:·

"Question then arises as to what is the binding nature of the decision given by the Commission under paragraph 15 In this respect, it has to he borne in mind that the Commission only decides the question as to whether any of the

'1(1) [1972] 2 SCR 318

. D

82 '

SUJ>REMB COURT RBJ>ORTS [1984] 3 s.c.R,

rival sections or groups of a recqgnised political pitrty, each of whom claims to be that patty, is that party. The claim maddn this respect is only for the purpose of symbols in connection with the elections to the Parliament and State 'Legislatures and the decision of the Commission pertains to this limited matter."

(Emphasis ours)

These observations also . do not advance the matter. any further because it was clearly held that the claim made in respect of symbols pertained only to the limited matter which was being considered by the Commission.

The following observations of tliis Court, in that case completely clinch the issue,. against the appellant: •

"It would follow from what .has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation, choice and alloiment of symbols and the recognition of poiitical parties in connection therewith. That the Commission should specify symbois for elections in Parliamentary and assembly constituencies . has also been made obligatory by rule 5 of Conduct of Election R, ules."

(Emphasis supplied)

Thus, it is manifestly apparent from this decision that the rule-making power of the Commission underthe Act, with respect to symbols, would have to prevail over any ordet that it may pass and the words "conduct of elections" would not make, the Commis sion a purely legislative body.

Another case on.which great reliance was placed is: Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New De/hi and Ors.1 In this case, it was held that an Order passed by a ' statuiory functionary on certain specific grounds cannot be .supple .

mented by external evidence like affidavits or otherwise. This case also nowhere lays down "thanhe Commission possesses plenary. powers-both executive and legislative-in the guise of concluct of elections. One of the main questions posed by Krishna Iyer, J .. speaking for the Court, was as follows:

"Can the Election Commission, clothed with the comprehensive funtions under , A, rticle 324 of the Constitu- . tion, cancel the whole poll qf'a constituenc¥ after it bas !/eq

(I) (1978] 2 S.Q.R .. 27Z

. t-4

A.C. JOSE v:. s. PILLAI (Fazal Ali, J.)

held, but before the formal declaration of the result has been made, and direct a fresh .poll witho11t reference to the guide lines under ss. ~8 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenary p0wer

exists, is it exercisable on the basis of his inscrutable 'sub . jective satisfaction' or

0 only on a reviewable objective assess ment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and . directions of a fresh poll not merely of particular polling st.ations but of the total constituency ?"

' .

The learned Judie while answering the question observed thus: • '.'Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for natio 'nal and State elections and, therefore, the nec.essary powers to discharge that function. It is true that Art. 324 has to be read .in the light of the constitutional scheme and the 1950 Act and the 1951 Act.

Sri Rao is right to the extent hdrisists that if competent legislation is enacted asvisualized in Article 327 the Commission cannot make himself free from the enacted pr.escriptions ..•. And the supremacy of valid law over the Commission argues itself.

No one is an imperium in imperio in' our constitutional order. it is reasonable to hold that the . Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms o(fairness and he cannot act arbitrarily. Unchecked power is.alien to our systein ...... Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superin tendence, direction and control' as well as 'conduct' of all elections' are the broadest terms."

(Emphasis ours)

The observations, extracted above, furnish a complete. answer

to the arguments of Mr. Jethmalani and Mr. Asoke Sen as it has.

G been clearly held that Art 324 would operate only in areas left unoccupied by legislation, even if the widest possible connotation is given to the language of Art. 3Z4. W

0hile sqmmarising the propo- . sitions, the Court made the following observations:

"Two limitations . at least are laid on its plenary H

(I) ]1878) 2 SCR, 272,

• c

• '

84 . ·

SU~REME COURT REJ?ORTS [1984] 3 s.c.R

character in the exercise . thereof. . First!;, when Par /iament or any State Legislature has made valfd law relating to or in connection with elections.' the Commission.shall act in con . formity with, not in. violation of such provision but where such law is silent Art. 324 is a reservoir of power to act for th_e avowed purpose of, not divorced from pushing forward a free .and f:rtr election with expedition.

Secondly, the Commission shall be responsible to the rule of law, act . bona fide and be amenable to the norms of natural justice in _so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action . ' ·• ' . m a most important area of the constitttional order, viz.,

elections." • (Emphasis ours)

This is actually the main spirit and' gist ofthe 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 th_e Commis . sion and the Act o.r 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 and Ors.' were Faz! Ali, J. (as he then was) while making a very pointed and crisp approach, scientifically analysed the positipn thus:

"Broadly speaking, before an. election machinery can be brought into operation, _there are. three requisites which require to be attended to, namely, (I) there should be a sei 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 he made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should oe a judicial tribunal to deal with disputes arising out of or in.connection with elections. Articles 327 and 328 deal with the first of these requisites, Art. 324 with the second and article 329 with the thid requisite. The other two articles in Part XV, viz., articfes 325 and 326, deal with two

• ' • ' • ' - • I '

C ll [19S21 SCR l~.

• •

• A.G. JOSE v. s. PILLAI (Faza/ Ali, J.)

matters of principle to which the Co.nstitution-framers_ have attached. much importance .. They are:-(1) prohibition 11gainst 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 <;:onstitution is really a code in itself providing the entire ground-Work for enacting appropriate laws and setting up suitable machinary for the conduct of elections.''

We fully endorse and follow the above observations of the

Constitutio~ Bench which lay down the correct la\Y 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 e: that Arts. ~24 to 329 have to be construed harmoniously flows as a logical' corollary from the ratio in Ponnuswami's c.ase .

. The pointed an pungent observations extracted. above, really amount to a Bible of the 'election law as culled out from an interpretation of the provisions of Arts. 324 to 329 of tb.e Constitution, and were referred to with. approval even in M ohinder Singh Gill's case (supra).· During the "last three decades this case has neither .been distinguished nor dissented from and still holds the field and with due respect, very rightly. No other case ever made such a dynamic and clear approach to the problem, perhaps due to the fact that no such occasion arose because the Commission has always been following the provisions of the Act and the Rules alid had never attempted to arrogate to.itself powers which were not .tf meant to belong to it. Indeed, if we were to accept the conteqtion' -.

of the respondents it would convert the Commission into an abo lute despot in the field of election so as to give directions regarding . ., the mo.de and manne.r of elections by passing the provisions of the Act, and the Rules purporting to exerci_se. powers -11nder cover of.

Art, 324. If the .Commission is armed with such unlimited and arbitrary powers and ifit eyer happens that the persoll!J manning the commission shares or is wedded to a particular ideology, he could by giving odd directions C'ause a political havoc or bring about a constitutional crisis, . setting at naught the intesrity anq independence of electoral process, so important and indispensible to the democratic system.

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 manifew

• .,

SUFREMB COURT REPORTS [!984J 3 s.c.a.

tha_t such a disastrous consequence could never have been c ontemplatea 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 tha electoral process.

Hence, we must construe Arts. 324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another.

Moreover, a perusal of Arts. 324 to 329 would reveal tht the~ 'legislative powers ih respect of matters r"elating to Parliamnt or

the State Legislatures vests . in. Parliament and in nci 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 legWature of a State being "?ade subject to Art. 324 Dnly mea_ns that no law made by Parliament nnder 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 ii'; . 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 {he Commission under Art 324.

Id view of the above, it is not neeessary for us to consider a number of other authorities . that were cited befQre us as they do not appear to be directly on point. '

1t is pertinent to indicate that the High Court fll 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 in'novate a new method and contend that use of the.mechanical process was not covered by tbe etisting Jll'.v and, therefore, did not come in conflict with the law in the field.

To sum up, therefore, the legal and constitutional position is as follows:

~ . . .

(a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,

A.C. JOSll v. s. PILLAI, (Fazal Aii, J.) 87

(b) 'where there is an Act and express Rules made thereunder it is not open to "the Commission to override the Act or the Rules and pass orders in direct disobedience • to the niancfate contained in the Act or the Rules. In other words; the powers of the Commission are meant to supplement rather than supplant the law (both statute ."and Rules) in the matter of superintendence, direction and control as provided by Art. 324,

(c) where -the Act or the Rules are silent, the Commissiori ·

has no doubt plenary powers under_ Art. 324 to give

• any direction in respect of.the conduct-of election, and 0

(d\ where .a particular direction by the Commission is submitted to the government for .approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the, Government _is _not given. _D

Apart from the arguments referred to above, an alternative a{gume_nt put forward before us was that even the_ Rule_s framed under the Act authorise the Commission to give direction to hold voting by the use of a voting machine and this is covered by s. 59 of the Act and Rule 49 of the Rules. This argument merits Serious E consideration. In the insta,_t case, the main grievance-of appellant i s that \he voting by mechanical process was not permissible either under the Act or under the Rules, Reliance was, however, placed by the appellant on s. ?9 of the Act which runs thus :

"59. Manner of voting at elections~

At every election where a poll is taken votes shall be given by ballot in such mamrer as may be prescribed, and no votes shall be received byproxy.': ·

It is obvious thats. 59 uses the words "ballot in such mann~

as may be prescribed", which means prescribed by the Rules made G under the Act. A reference to s. 61 of the Act would show that Parliament intended use of ballot papr only for casting of votes.

This takes us to rule 49, the relevant part of which may be extracted thus:

"49. Voting by ballot at notifiedpolling stations-

(!) Notwithstanding any thing contained . in the

Stil'RBME COURT REPORTS t19s4i 3 s.c.il, k

p(eceding provisions of this Part, the Election Commission may, by notification published in the Official Cazette at least 15 days before th.e date, or the first ol the dates, of poll appointed for an election, direct th.at the method of voting by ballot shall be followed in that election at such polling statiens as miy be specified in the notification." • It was submitted that having regard to the modern and changing conditions of the society a dynamic approach should be made to the interpretation of the aforesaid two legal requirements. The matter does not rest here: something could be said for "the view that the word 'ballot' includs voting by machines.

Section 59 prnceeds to explain its.intention in setting up the mode, manner and method of voting' by prescribing express rules as to how the voting should be done. In this connection, reference may be made to Rui.e.22 which relates to the form ofba11ot.paper and its contents. Rule 23 requires the Returning Officer to record on the counterfoil of the ballot paper the lectoral roll number of the elector as entered in the marked copy of the electoral roll. Rule 27 refers to the return of ballot paper after an elector has recorded his vote or made iiis declaration. Rule 30, which, prescribes the contents of ballot papers, is co.mpletely contrary to the concept of ballot by machine. Similarly, Rules 33, 38, 39 and 40 seem to be wholly inconsistent with the mechanical process but seem to adopt the conventional method. As we have already indicated, these Rules ate binding on the Commission and it cannot by an executive fiat either override them or act contrary to the statutory provisions of the Rules, •

On a proper and detailed analysis of these Rules it is clear that the Act by framing the. •Rules completely' ex.eluded the mechanical process which, if resorted-to, would defeat Ill a large measure the mand;:\tory requirements of the Rules,

It is a well settled rule of interpretation of st.a tut es that words, phrase or sentences of a statute should ordinarily be understood in their natural, ordinary, popular and grammatical seµse unless such a constniction leads to absurdity. Mr. Jethmalani argued'that the word 'ballot' is wide enough to include the mechanical process and, therefore, the direction of the Commission falls squarely within the four .corners of both s'. 59 and Rule 49.

Reliance was placed on the dictionary meaning of the word 'ballot' Which has been defined in Black's Law Dictionary (Fourth Edn.) at page 182 thus : . . .

\ ,_.

A.C. JOSE v. s: PiLLAI (Faza/ Ali, J.)

."means act of voting, usually in secret, by balls orb~ written or printed tickets or slips of paper ; the system of voting by balls or tickets, or by any device for castmg or ' 'fecording votes, as by voting machine."

. In Stroud's Judicial dictionary (Third Edn.), however, 'ballot' means "votes recorded-all ballot papers put into the ballot boxes by the electors (p. 3.239)". 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 nofgenerally invoked in most of the 'democratic countries of the world.

Concise Oxford dictionary defines the word 'ballot' thus :

. "(usu. secret) voting,· small ball, ticket or. paper used in

vting; votes so recorded; lot-drawing."

In Webster's Third New International Dictiona; y (Vol. I) at page 168 'ballot' is defined .thus :

"to obtain a vote from ·(a .body of voters) (the men on the

. '. t

proposal), to select by b.allot or by the drawing of lots." B

Itmay 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 circutnstances, therefore, we are constrained to hold that the word 'ballot' in its strict sense wonld not in, clude 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 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 rulemaking authority was not prepared to switch over to the system of

. c.

....

SUPREME COUR'f REPORTS . . . tt984l 3 s.c.k.

voting by machines, perhaps on account of the legal bar .as. indicated by us.

It is ratl:ier .unfortunate that the Union of India which is a party to this case, bas taken a very neutral stand by neTtber supporting nor opposing the directio~ given by the Commission.

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 macb.ines in some of the polling stations, as indicated above, was without juisdiction and could not have been res()rted to .

It was further pointed out by the respondent tht the process of votingl:iy machines is very useful as it elimin_ates a nfitnber of drawb.acks and expedites, to a great exfent, the declaration of the result of the election by elimillating the process of counting of votes from t-he 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 prcess. 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 vot.er,

(b) by impersonating an absentee voter,

(c) by the genuine voter who tenders a vote after a

vote has been cast in his name by1m impersonator

(R. 421,

(d) where a vote is void having been cast after clcsing

time (R. 43),

(e) where the voter ha~ cast vote~ in more than one bopth in the same constituency [s. 62(2)],

(f) where the voter has cast two votes in two constituencies [s. 63(3)],

(g) where the voter is disqualified unaer s. 16 of the Act. [s. 62(4)],

A.c. Josil v. s.-PILLAI (Fazal Ali, i.)

(h) where an elector marks a ballot paper wrongly

• for a candidate, he loses the right to get a fresh ballot paper ror easting his vote correctly (R. 41).

The provisions of S. !OO(l)(d) and more so S. IOl(a) and

(h) under which by excluding the void vol.es or votes cast as a result of corrupt practices any other candidate can be declared duly elected as the true representative of the . constituency,"

On the other hand, a number of advantages which could be obtained by using the mech&nical process were pointed out by. the respondent, the suin and substance of which was that despite some defects the elecl!lral 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 adop- . ted, full and proper training will have to be given to the vot<rs

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 'tir the other, to give legal sanction to the direction given by the Commission. For these resasons, it.is not necessary for us to go into the very detailed notes of arguments subniitted by the parties in respect of this aspect of the matter;

Lastly, it was argued by the counsel for the respondents that the appellant would qe estopped from challenging the mechanical process because he did not oppose the introduction of tl)is process although be 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 b\fore introduction of the voting machines, if such a process is not permissibleor autho rjsed by law he cannot be estopped from chaJlenging thesame .

For the reasons given above, we allow. th~ appeal, set aside' the election of the respondent with respect to the 50 polling stations where the voting machines were used and we direct a

repoll to be held in these 50 polling station.s: We, however, do H not touch or disturb the results of the votes secured in tjie other

3<1 polling stations which was, done in accordance with Jaw, viz.,

92 SuPREME COURT REPORT

• l' [19S4] 3 s.c.R.

'A the use of ballot papers.

After the repoll, the result of the election would b.e announced afresh after taking into account the votes already secured by the candidates, including the Res-pondent.

We make no order as to costs.

In course of argument, Mr. Sen for the Cornrnision informed us that at eleven elections held, under the Act, the mechanical B . device Was used and in nine, no challenge has been raised. It

' •

follows that -our judgment will not affect those nine elections in

' any manner.

N.V.K.

Appeal allowed.

• •