Judgment Case ID: 3817

Judgment:
l Appeal No. 11 14 of 1976. From the Judgment and Order dated 22nd September 1976 of the Kamataka High Court in Election Petition No. 1 of 1974. L. N. Sinha	 K. R. Karanah & B. P. Singh for the Appellant. K. N. Bhat and (Miss) section Pramila for the Respondent No. 1 Y. section Chitley and Narayan Nettar for Respondent No. 2 The Judgment of the Court was delivered by KRISHNA IYER	 J. Four heavy volumes of case records confron ted us in this appeal	 as counsel opened the arguments	 but some	 Socratic processing seemed to condense the controversy and forensic prolixity so much so we first thought the case had shrunk to such small dimensions as to be disposed of in a short judgment. But what we initially felt	 when the brief narration of facts was given	 proved a 195 snare. For	 when we read out in court our opinion on the only crucial aspect of the case	 counsel for the 1st respondent hopefully insisted that the factual grounds	 requiring our ploughing through ponderous tomes of testimonial collection	 pleadings and what not	 should be investigated as he expected to sustain the invalidation of the election by the High Court on the score of corrupt practice and the consequential disqualification of the rival candidate i.e.	 the appellant before us. He was entitled to press that part of his case and so we agreed to hear both sides extensively thereon. However	 hours of argument after	 we were back to square one. At this stage	 some relevant facts and circumstances need narration. The Karnataka Legislative Council has	 in its composition	 some members elected from the local authorities constituencies. One such member is elected by the local bodies of Bidar district and the specific election that falls for decision was held on May 12	 1974. According to the calendar for the poll contemplated in s.30 of the Representation of the People Act	 1951 (hereinafter called the 1951 Act)	 the last date for presenting the nominations was appointed as April 17	 1974. Section 33(1) requires that each candidate shall deliver to the returning officer a nomination paper as set out in the section 'between II o 'clock in the forenoon and 3 o 'clock in the after noon '. The appellant and the first respondent did file their nomi nations in conformity with the law; their scrutiny over	 they entered the fray and	 after the poll was over	 the appellant was declared elected	 having secured 64 votes as against the 1st respondent 's 54 votes. The frustrated 1st respondent found 16 illegitimate votes having been cast in favour of the successful candidate and further discovered that these 16 electors were ineligible to figure on the electoral roll but had been surreptitiously introduced therein by collusion	 fraud and other improper machinations in which the returned candidate and the returning officer were collaborative actors. The purity of the election was polluted. The result of the poll was materially affected. The electoral process was vitiated by 'corrupt practice ' in which the appellant and the 2nd respondent were particeps criminis. He ventured on an election petition with the prayer to set aside the poll verdict inter alia under section 123(7) of the 1951 Act and also sought a declaration 'that he was duly elected on the score that the exclusion of the invalid votes	 very probably cast in favour of the appellant	 led inevitably to his arithmetical success as the one who had secured the larger number of valid votes. Such was his case. The petitioner had made somewhat vague	 sweeping and speculative allegations about government	 higher and lower echelons of officialdom and the rival candidate but	 if an apology for specificity is partially present in the petition	 it is about the charge of corrupt practice roping in the returning officer cum electoral registering officer (2nd respondent) and the successful candidate (appellant). No issue was originally framed on the critical question of corrupt practice but the learned judge permitted evidence thereon to be adduced a procedure difficult to appreciate. After the trial was virtually closed and the arguments finished	 the Court discovered the need for framing this decisive issue. On objection as to the absence of material facts and 196 or material particulars	 the learned Judge framed an issue also on the actual vagueness and legal flawsomeness of pleadings on corrupt practice. Naturally	 this latter question demanded prior decision but	 curiously	 the Court delivered all its findings	 on the day of judgment	 a faux pas which we must point out. Processual proprieties are designed to ensure fair play in adjudications and while such prescriptions are not rigid punctilios	 their observance serves to help the judge do	 effective justice between parties and the disputants have faith in the intelligent impartiality and full opportunity so necessary for the success of the rule of law. In election proceedings where the whole community is silently present and the controversy is sensitive and feelings suspicious	 the principles of procedural rectitude apply a fortiori. The judge is the guardian of processual justice and must remember that judgment on judgment belongs	 in the long run	 to the people. We state this stern proposition here not merely because a forensic stitch in time saves cassational nine but because courts are on continuous trial in a democracy. In this case we are not satisfied that either party has suffered in substance and procedural breaches	 unless they spell unmerited prejudice	 may be brushed aside at the appellate level. Having said this	 we hasten to add that had not the learned judge uncovered the suspect happenings sinisterly hovering around the last day for finalising the electoral roll	 the dubious doings of the political government in a seat hungry setting might not have been ventilated for public edification. The electoral events brought out in evidence are 'power ' portents 'to be prevented preemptively by law and this prompts us to deal with the testimonial circumstances surrounding the inviolable roll of voters having been adulterated after the final hour	 zealous officers frantically exerting themselves in what seems at first sight to be a series of belated circus operations geared to inclusion of additional names in the rolls before 17th mid night drew the curtain. Caesar 's wife must be above suspicion and wielders of public power must fill this bill. A moral matrix and administrative culture must nurture the power process if democracy is not to commit suicide. We will make good the relevance of these critical statements with reference to the incontrovertible facts of this case. However	 we do not delve into the minutiae of evidence or span the entire factual range	 that being otiose. A catalogue of circumstances	 fair to both sides	 will tell its own moral tale and so we set it out. The last date for completing the electoral roll was April 17	 1974. The rival candidates (the appellant and the 1st respondent) belonged to opposing political parties but the appellant"s party was in power. Both the candidates had semi V.I.P. status in their respective parties. One member more in the Legislative Council would	 pro tanto	 strengthen the Ministry. This political backdrop be lights some of the things which occurred on the	 dates proximate to the completion of the electoral roll. The administrative locomotion and the human motivation behind what the trial judge had described as 'manouvres ' is simple to understand	 although	 as will be shown below	 we do not agree 197 wholly with all the deductions of the High Court. A particular party is in office. The strength of its members in both Houses is therefore of political significance	 especially if fluid Politics turns out to be the field of all possibilities. Karnataka has a bicameral legislature	 and it is reasonable to suppose that the political government has an understandable concern in the election of a member of the Legislative Council	 who will be of their party. Bidar district in Karnataka has a local authorities constituency seat	 to be elected by the members of the local bodies there. It follows that the potential electors who are likely to favour their candidate must be brought on the rolls to ensure his victory. Inevitably there was therefore keen interest in incorporating in the electoral roll the members of the Taluk Development Board	 Bidar (for short	 the Bidar Board). The election to the Bidar Board had taken place years ago	 11 of them having been elected way back in 1968 and 8 later. The election of the 11 members had been duly notified in 1968 but the Board itself stood suspended	 an Administrator having been appointed to run its affairs. 8 members who had been later elected to the Board landed up in the High Court on account of writ petitions filed by their rivals. Stay had been granted by the High Court and this led to an absence of 2/3 of the total members being able to function	 statutorily necessitating the appointment of an Administrator. Long later the High Court disposed of the writ petitions whereby 3 returns were set aside and 5 upheld. The arithmetical upshot of these happenings was that there were 16 members duly elected to the Bidar Board	 and the High Court having disposed of the writ petitions in June 1972	 the local body could have been liberated from the bureaucratic management of an Administrator and allowed to function through elected representatives. All that was needed to vivify this body of local self government was a notification under the Mysore Village Panchayats Act X of 1959	 terminating the Administrator 's term	 and perhaps another extending the terms of some members. Elections to local bodies and vesting of powers in units of self government are part of the Directive Principles of State Policy (article 40 of the Constitution) and	 in a sense	 homage to the Father of the Nation	 standing as he did for participative democracy through decentralisation of power. Unfortunately	 after holding elections to the Bidar Board and making people believe that they have elected their administrative representatives at the lowest levels	 the State Government did not bring to life the local board even long after the High Court had disposed of the challenges to the elections in June 1972. A government	 under our Constitution	 must scrupulously and energetically implement the principles fundamental to the governance of the country as mandated by article 37 and	 if even after holding elections Development Boards are allowed to remain moribund for failure to notify the curtailment of the Administrator 's term	 this neglect almost amounts to dereliction of the constitutional duty. We are unhappy to make this observation but power to the people	 which is the soul of a republic	 stands subverted if decentralisation and devolu tion desiderated in article 40 of the Constitution is ignored by executive inaction even after holding election to the floor level administrative 198 bodies. The devolutionary distance to ideological Rajghat from power jealous State capitals is unwillingly long indeed	 especially in view of the familiar spectacle of long years of failure to hold elections	 to local bodies	 supersession aplenty of local self government units	 and gross inaction even in issuing simple notifications without which elected bodies remain still born. 'We	 the people ' is not constitutional mantra but are the power holders of India from the panchayat upward. Back to the main trend of the argument. It became now compulsive for the party in power to de notify the Administrator and revive the elected body if they wanted the members of the Bidar Board to vote perhaps in favour of their candidate. The 11 members elected long back in 1968 could not vote	 on account of the expiry of the 4year term unless in view of section 108 of Act 10 of 1959	 the government issued another notification extending the term of office of these members. So the elective interest of the candidate of the party in power could be promoted only if three or four quick administrative steps were taken. Firstly	 there was to be a notification ending the Administrator 's term over the Bidar Board. Secondly	 there was to be a notification extending the term of the 11 members elected in 1968. Thirdly	 there was to be a notification of the election of the 5 members whose return had been upheld in the High Court in June 1972. Fourthly	 the electoral roll had to be amended by inclusion of these 16 names. If these steps were duly taken	 16 additional members would become electors and the party in power (if these electors be longed to that party or were under its influence) could probably expect their votes. The poll results show that the contest was keen and these 16 votes would have been of great moment. In this high risk predicament	 long bureaucratic indolence in issuing notifications and political indifference to the functioning of local bodies produced a situation where the elected roll did not contain the names of the 16 members of the Bidar Board. Only a few days prior to April 17	 1974 the D day the affected candidate	 i.e.	 the appellant	 moved the government for initiation of the steps mentioned above ' but nothing happened. On April 16	 the day before the crucial date for closing the electoral roll	 i.e.	 the last date for making nominations	 the appellant moved the Minister concerned who was in Bidar to get the necessary administrative steps taken quickly. He also moved the returning officer	 RW 2. We find the Minister making an endorsement on the petition. We notice the returning officer seeking telegraphic instructions from government. We see government sending an Under Secretary	 PW 3	 by air from Bangalore to Hyderabad and onward by car to Bidar with some orders. This PW 3 probably apprised the returning officer RW 2 about orders having been passed raving the way for inclusion of the 16 names in the electoral roll. PW 3	 the Under Secretary	 for reasons not known	 makes a bee line the same evening to Gulbarga where be meets the Minister. The returning officer does not have with him any gazette ' notifications. as we see that under section 2(20) of Act X of 1959	 a notification must possess the inalienable attribute of publication in the official gazette. Admittedly	 the returning officer did not come by any 199 of the necessary notifications before the evening of the 17th. Admittedly	 he did not have any gazette notifications before April 25th. Under section 27 of the Representation of the People Act	 1950	 the electoral registration officer who	 in this case	 is also the returning officer	 had to have before him gazette notifications which clearly he did not have till the 25th	 i.e.	 8 days after the relevant date. Nevertheless he	 obligingly enough including the 16 names which was in breach of the legal provisions. Frenzied official movements on and after April 16 are visible in this case. The scenario excites suspicion. The candidate meets the Minister of his party on the 16th. The returning officer takes the unusual steps of sending a telegram for instructions from government for inclusion of names in the electoral roll. The Secretariat despatches an Under Secretary to reach Bidar by air dash and long car drive. A meeting between the Under Secretary and the electoral registration officer follows and then the Under Secretary winds up the day by meeting the Minister	 presumably to report things done	 and the registration officer supplements the electoral roll by including 16 more names	 without getting the gazette notification. We have no doubt	 as we will presently explain	 that this inclusion is invalid	 but what we are presently concerned with is the protracted inaction for years of the State government in issuing simple notifications to resuscitate the Bidar Board and the sudden celerity by which a quick chase and spurt of action resulting in a Minister 's endorsement	 the regis tration officer 's telegram	 Secretariat hyper busyness	 the unusual step of an Under Secretary himself journeying with government orders to be delivered to the registration officer	 the electoral registration officer hastening to amend the	 electoral roll slurring over the legal require ment of a gazette notification and making it appear that everything was done on the 17th before mid night	 and a few other circumstances	 make up a complex of dubious doings designed to help a certain candidate belonging to the party in power. The officers had no	 personal interest as such and	 in fairness	 we must state the High Court has exonerated them of any oblique conduct to further their own interests. We wish to state clearly that having taken a close look at the developments we are not inclined to implicate any of the officers and there are quite a few involved with mala fide conduct or collusion with the returned candidate. Legal peccadilloes are not fraud or collusion without more. However	 the performance of the political government and the pressurization implicit in the hectic activities we have adverted to	 read in the light of the likely political gains accruing to the party in power	 generate apprehensions in our minds about the peril to the electoral process if poli tical bosses in office rubberise the public services to carry out behests which are contrary to the law but non compliance with which might be visited with crypto punitive consequences. We would have taken a harsher view against the public servants bad we something more than what may even be a rather strong suspicion of obliging deviance. Sometimes they are transfixed between Scylla and Charybdis. Even 200 strong suspicion is no substitute	 for proof. It has often been said that suspicion is the Upas tree under whose shade reason fails and justice dies. There is	 a core of truth in this caveat. Shri Bhat	 counsel for the 1st respondent	 argued his case strenuously but could not make out that vital nexus between the candidate who stood to gain and the officers whose action he impugned. over	 the movements of the Minister at about that time raises doubts and the huge expenditure involving in rushing an Under Secretary from Bangalore by air and road to Bidar were a drain on the public exchequer which could have been avoided if action had been taken in time by a few postal communications. But the trial judge erred in substituting suspicion for certitude and drawing untenable inferences where paucity of evidence snapped the nexus needed for collusion. A court must	 as usual	 ask for proof beyond reasonable doubt from the party setting up corrupt practice even when there is a veneer of power politics stooping to conquer and officers thereby becoming vulnerable to 'higher displeasure. The faith of the people in the good faith of government is basic to a republic. The administrative syndrome that harms the citizens ' hopes in the State often manifests itself in callously slow action or gravely suspicious instant action and the features of this case demonstrate both. Pi Admittedly	 the Bidar Board elections were substantially over in 1968 and were more or less complete in 1972 and yet the necessary notifications in the gazette	 which are the statutory precondition for the local body to be legally viable	 were	 for years	 not published and	 when the critical hour for the electroal list to be finalised fell at 3 p.m. on April 17	 1974	 the government and its officer			 went through exciting exercises unmindful of legal prescriptions and managed the illegitimate inclusion of 16 names in the electoral roll. We hope that the civil services in charge of electoral processes which are of grave concern for the survival of our democracy will remember that their masters in statutory matters are the law and law alone	 not political superiors if they direct deviance from the dictates of the law. It is never to be forgotten that our country is committed to the rule of law and therefore functionaries working under statutes	 even though they be government servants	 must be defiantly dedicated to the law and the Constitution and	 subject to them	 to policies	 projects and directions of the political government. "Be you ever so high	 the law is above you" this applies to our Constitutional order. Shri Bhat	 counsel for the 1st respondent ultimately argued these aspects of the case. But	 when we were more than half way through	 it became clear that the material link to make out invalidation of the election on account of 'corrupt practice under section 123(7) of the 1951 Act was missing because it had not been made out in the evidence that there was collusion between the 2nd respondent and the appellant. At that stage	 taking a realistic stance	 counsel acceded to our view that while there was sufficient room for the 1st respondent to be 201 disturbed about the electoral verdict on the score of the inclusion of 16 names there was not any telling material	 other than speculation or weak suggestion	 that there was corrupt participation on the part 		of the officers. If this position were right and we hold it is what remains to be done is to ascertain the legal effect of the inclusion in the electoral roll of the new names after the expiry of the appointed 	hour and date. According to the calendar for the poll contemplated in section 30 of the 1951	 Act the last date for making the nominations was appointed as April 17	 1974. Section 33(1) of the 1951 Act requires that each 	 candidate shall deliver to the Returning officer a nomination paper as set out in the section : "between 11 o 'clock in the forenoon and 3 o 'clock in the afternoon". The appellant and the 1st respondent did 	file their nominations in conformity with sections 30 and 33 of the 1951 Act but the electoral registration officer 2nd respondent in the appeal)	 included the names of 16 persons representing the Bidar Board after 3 p.m. of April 17	 1974. There is a dispute between the parties as to whether such inclusion was directed on the 17th (after 3 p.m.) or on the 18th	 the former being the case of the appellant as well as the 2nd respondent	 the latter being the case of the 1st respondent and upheld by the High Court. The Court held that	 in law	 any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nomination fixed under section 30(a) of the 1951 Act was illegal. Consequently. it arrived at the follow up decision that the 16 votes which had been cast by those objectionably added	 had to be ignored. On a further study of the evidence	 the Court concluded that these 16 votes had been cast in favour of the elected candidate and should therefore be deducted from his total tally. The appellant	 who had secured 64 votes as against respondent no. 1 's 54	 had only a lead of 10 votes. He slumped below the 1st respondent when 16 votes were deducted from his total. The necessary result	 in the view of the High Court	 was that not only had the appellant 's election to be set aside but the 1st respondent deserved to be declared duly elected. This was done. An appreciation of the evidence bearing on the question as to whether the 2nd respondent i.e.	 the Registration officer bad acted under the appellant 's oblique influence in including the additional names after the last date for such inclusion	 has led us to overturn the affirmative answer from the learned trial judge. The holding that a 'corrupt practice '	 within the ambit of section 123	 had been committed by the appellant who was therefore disqualified under section 8A led to two consequences. The appellant	 who had won the election at the polls	 lost the election in the court and	 worse still	 suffered a six year disqualification. The doubly aggrieved appellant has challenged the adverse verdict and the wounded 2nd respondent (electoral registration officer) has separately appeared to wipe out the damaging effect of the obliging inclusion of names of electors after the time set by the law was over. We have already set aside the finding under section 123(7) of the 1951 Act	 of corrupt practice and with it falls the disqualification. 2 768 SCI/77 202 The short point	 whose impact may be lethal to the result of the election	 is as to whether section 23 of the 1950 Act should be read down in conformity with sections 30 and 33 of the 1951 Act. The proposition		 which has appealed to the High Court	 has the approval of the ruling in Baidyanath(1). The Court	 there	 observed: "in our opinion cl. 23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date before the completion of that election. It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. Therefore it is not a question of irregular exercise of power but a lack of power. (p.842 We have earlier come to the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27	 1968. Therefore votes of the electors whose names were included in the roll on that date must be held to	 be void votes." (p. 843) There is a blanket ban in section 23(3) on any amendment	 transposition or deletion of any entry or	 the issuance of any direction for the inclusion of a name in the electoral roll of a constituency 'after the last date for making nominations for an election in that constituency. This prohibition is based on public policy and serves a public purpose as we will presently bring out. Any violation of such a mandatory provision conceived to preempt scrambles to thrust into the rolls	 after the appointed time	 fancied voters by anxious candidates or parties spells invalidity and we have	 therefore	 no doubt that if in flagrant violation of section 23(3)	 names have been included in the electoral roll	 the bonus of such illegitimate votes shall not accrue	 since the vice of avoidance must attach to such names. Such void votes cannot help a candidate win the contest. Why do we say that there is an underlying public policy and a paramount public purpose served by section 23(3) ? In our electoral scheme as unfolded in the 1951 Act	 every elector ordinarily can be a candidate. Therefore	 his name must be included in the list on or before the date fixed for nomination. Otherwise he losses his valuable right to run for the elective office. It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. There is another equally valid reason for stressing the inclusion of the names of all electors before (1) [1970] 1.S.C.R. 839. 203 the hour for delivering to the returning officer the nomination paper. Section 33(4) of the 1951 Act reads "(4) On the presentation of a nomination paper	 the returning officer shall satisfy himself that the names and electoral roll numbers of the Candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : x x x x" In the light of this provision the returning officer	 on receipt of the nomination paper	 satisfies himself that the candidate 's name and electoral roll number are correctly entered. Necessarily	 this is possible only if the electoral roll contains the names of all the electors. Likewise	 section 33(5)	 which deals with a candidate who is an elector from a different constituency	 requires of the candidate the production of a certified copy of the relevant entry showing his name in such a roll. The inference is inevitable that there must be a completed electoral roll when the time for filing the nomination paper expires. The argument is therefore incontrovertible that the final electoral roll must be with the returning officer when the last minutes for delivering the nomination paper ticks off. Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors	 introduce a disability for such subsequently included electors to be candidates for the election and run counter to	 the basic idea running through the scheme of the Act that in the preponderant pattern of elections	 viz.	 for the legislative assemblies and parliament	 the electors shall have the concomitant right of being candidates. The cumulative effect of these various strands of reasoning and the rigour of the language of section 23(3) of the 1950 Act leaves no doubt in our minds that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency	 must be visited with fatality. Such belated arrivals are excluded by the talons of the law	 and must be ignored in the poll. It is appropriate to quote from Baidyanath(1) here : "The object of the aforesaid provision is to see that to the extent possible	 all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered. Sub section (3) of section 23 is not an important exception to the rules noted earlier. It gives a mandate to the electoral registration officers not to amend	 transpose	 or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election. If there was no such provision	 there would have been room for considerable manipulations	 particularly when there are only limited number of electors in a constituency. But for that (1) ; 	842. 204 provision	 it would have been possible for the concerned authorities to so manipulate the electoral rolls as to advanced the prospects of a particular candidate. " A more trickly issue now arises	 Assuming April 17	 1974 to be the last date for filing nominations (and it is so in the case)	 can the electoral roll be amended on that date to include additional names	 but after the hour set for presenting the nomination paper ? Section 33(1) specifies inflexibly that the nomination paper shall be presented between the hours of 11 o 'clock in the forenoon and 3 o 'clock in the afternoon '. That means that the duration of the day for presentation of nomination papers terminates at 3 o 'clock in the afternoon. If an elector is to be able to file his nomination paper	 his name must be on the electoral roll at 3 p.m.	 on the last day for filing nominations. So the temporal terminus adquem is also the day for finalisation ofthe electoral register and by the same token	 that day terminates atjust that hour when the returning officer shuts the door. The day is truncated to terminate with the time when reception of nominations closed. Section 23 of the 1950 Act does state that the inclusion of the names in the electoral roll can be carried out till the last date for making nominations for an election in the concerned constituency. What	 then	 is the last date? When does the last date cease to be? If the purpose of the provision were to illumine its sense	 if the literality of the text is to be invigorated by a sense of rationality	 if conscionable commonsense were an attribute of 'statutory construction	 there can hardly be any doubt that the expression 'last date for making nominations ' must mean the last hour of the last date during which presentation of nomination papers is permitted under section 33 of the 1951 Act. In short	 section 23 (3) of the 1950 Act and section 33(1)	 (4) and (5) of the 1951 Act interact	 fertilise and operate as a duplex of clauses. So viewed	 the inclusion of the names in the electoral roll after 3 p.m.	 on April 17	 1974	 is illegitimate and illegal. At this stage	 it may be appropriate to make reference to Ramji Prasad Singh(1) to which one of us was a party. Indeed	 attention of counsel was invited to this decision by the Court. That case turned on the inclusion of 40 voters in contravention of section 23(3) of. the 1950 Act. By incorporating in the electoral roll new names after the last date for filing nomination	 this Court held that such inclusion of new names would be clearly in breach of the mandate contained in section 23(3) of the 1950 Act and	 therefore	 beyond the jurisdiction of the electoral registration officer. This view is precisely what we have taken in the present case. In that case this Court	 on fact	 took the view that the communication from the Chief Executive Officer of the local authority to substitute certain new names in the electoral roll could not have been acted upon (1) ; 205 before April 6	 1972	 the last date of nomination being April 5	 1972.This is clear from the following observation in the judgment : "In fact the letter was 'diarised ' by Shri Bose 's office on the 6th. The fact of the matter seems to be that the notifications of the 4th April came too late for being acted upon before the dead line	 which was the 5th. The red tape moved slowly	 the due date expired and then every one awoke to the necessity of curing the infirmity by hurrying with the implementation of the notifications. But it was too late and the law had already put in seal on the electoral roLL as it existed on the 5th April. It could not be touched thereafter	 until the completion of the election. " This Court	 in that case	 observed that it was 'impossible to accept the half hearted claim of Shri Bose that he passed orders for inclusion of the new names on the 5th itself '. This Court was not called upon to go into the question as to what would be the legal position if the electoral rolls were actually amended at 11.30 p.m. on 5th April after the last hour for the nomination	 viz.	 3 p.m. on that day. This finer facet which falls for consideration in the present appeal viz.	 whether the 'last day ' contemplated in section 23(3) of the 1950 Act ends at 3 p.m. on that day for the purpose	 or continues until mid night did not actually arise for judicial investigation in Ramji Prasad 's Case(supra). The upshot of the above interpretation is that the 16 names which have been brought into the electoral register subsequent to 3 p.m. of April 17	 1974 must be excluded from the reckoning to determine the returned candidate. The learned Judge has declared the 2nd respondent duly elected on the strength	 mainly	 of inference drawn from the oral evidence of the rival candidates. The ballots are alive	 and available and speak best. Why	 then	 hazard a verdict on the flimsy foundation of oral evidence rendered by interested parties ? The vanquished candidate 's apse digits or the victor 's vague expectations of voters ' loyalty the grounds relied on are shifting sands to build a firm finding upon	 knowing how notorious is the cute art of double crossing and defection in electoral politics and how undependable the testimonial lips of partisans can be unless authenticated by surer corroboration. Chancy credulity must be tempered by critical appraisal	 especially when the return by the electoral process is to be overturned by unsafe forensic guesses. 	 And where the ground for recount has been fairly laid by testimony	 and the ballot papers	 which bear clinching proof on their bosoms	 are at hand	 they are the best evidence to be looked into. No party can run away from their indelible truth and we wonder why the learned judge avoided the obvious and resorted to the risky. May be thought reopening and recount of ballots may undo the secrecy of the poll. We are sure that the correct course in the circumstances of this case is to send for and scrutinize the 16 ballots for the limited purpose of discovering for whom	 how many of the invalid sixteen have been cast. Secrecy of ballot shall be maintained when scrutiny is conducted and only that part which reveals the vote (not the persons who voted) shall be open for inspection. 206 What	 then	 is the result of the reasonings which have prevailed with us ? It is simply this	 viz.	 that the 16 votes of the members of the Bidar Board should be excluded and the consequential tilting of the result re discovered. We are	 therefore	 constrained to direct the High Court to send for the ballot papers and pick out the 16 ballots relating to the Bidar Board members	 examine them without exposing the identity of the persons who have voted and to whom they have voted and record a rectally excluding these 16 tainted votes from the respective candidates. It the resultant balance sheet shows that the appellant has polled less valid votes than the 1st respondent	 his election will be set aside and the 1st respondent declared duly elected. If	 on the other hand	 despite these deletions the appellant scores over the 1st respondent	 his return will be maintained. Any way	 counsel on both sides agree that the best course will be to call for a report from the High Court in the light of the operations above indicated. The learned Single Judge who heard the case will examine the 16 ballots as directed above consistently with natural justice	 record the number of votes out of the 16 each has got and forward to this Court a comprehensive and correct statement with the necessary particulars. This report shall be made within 3 weeks from the receipt of the records from this Court and the appeal shall be posted for disposal immediately the report reaches. With these directions we dispose of the appeal pro tempore. By way of post script	 we may state that counsel for the 1st respondent submitted	 after we crystallized the directions indicated above	 that he was not too sure whether the 16 ballot papers could be identified. The appellant 's counsel	 however	 asserted that there were numbers indelibly imprinted on the reverse of the ballot papers and	 as such	 the identification of 16 impugned votes may not present a problem. In the event of impossibility of fixing identity	 a report to. that effect will be forthcoming from the High Court and we may	 notwithstanding the observations about the oral evidence made above	 rehear the case with a view to record our finding as to which way the voting went	 out of the offending 16	 so that we may determine whether the result of the election has been materially affected. If it is not possible	 further suitable directions will be considered. We may also mention that at one stage of the arguments Shri L.N. Sinha drew our attention to a designedly wide amendment to the Act of 1951 made in the wake of the election case of Smt. Indira Gandhi. Its validity	 for our provisions	 has been upheld by this Court in Smt. Indira Nehru Gandhi vs Raj Narain(1). It was pressed before us that with the re definition of 'candidate ' in section 79(b) and the addition of a proviso to section 127(7)	 by Act XL of 1975	 the present election petition had met with its statutory Waterloo. But Shri Bhat urged that his averments of officials ' abetment of promotion of the appellant 's candidacy related also to a point of time after the nomination paper was filed. He also submitted that the imputations against the electoral registration officer were so far beyond his duties that the blanket proviso could not protect the acts. Since we have taken the view that corrupt practice	 even under the amended section 123(7)	 has not been established	 (1) 207 the pronouncement on the exonerative efficacy of the amended Act does not arise. But officials must realise and so too the highest in Administration that the proviso to section 123(7) does not authorise 	out of the way doings which are irregular. A wrong does not become right if the law slurs over it. We part with this case with an uneasy mind. There is a finding by the High Court that an influential candidate had interfered with officials to adulterate an electoral roll. We have vacated the finding but must warn that the civil services have a high commitment to the rule of law	 regardless of covert commands and indirect importunities of bosses inside and outside government. Lord Chesham said in the House of Lords in 1958 : "He is answerable to law alone and not to any public authority.". A suppliant	 obsequious	 satellite public service or one that responds to allurements promotional or pecuniary is a danger to a democratic polity and to the supremacy of the rule of law. The courage and probity of the hierarchical election machinery and its engineers	 even when handsome temptation entices or huffy higher power browbeats	 is the guarantee of electoral purity. To conclude	 we are unhappy that such aspersions against public servants affect the integrity and morale of the services but where the easy virtue of an election official or political power wielder has distorted the assembly line operations	 he will suffer one day. Be that as it may	 we express no final opinion beyond what has already been said. P.B.R. Appeal allowed in part.

Summary:
Article 171(3) of the Constitution of India provides that of the total number of members of the Legislative Council of a State one third shall be elected by electorates consisting of members	 among others	 of local authorities in the State as Parliament may by law specify. Part IV of the Representation of the People Act	 1950 which deals with electoral rolls for council constituencies provides in section 23(3) that no amendment	 transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date for making nominations for election in that constituency. Section 33(1) of the Representation of the People Act	 1951 requires that each candidate shall deliver to the Returning Officer a nomination paper "between 11 o 'clock in the forenoon and 3 o 'clock in the afternoon. " By a notification issued under section 30 of the Representation of the People Act	 1951 the Electoral Registration Officer appointed April 17	 1974 as the last date for presenting nomination papers from the local authorities constituency. In the election that ensued the appellant was declared elected with 64 votes polled by him as against 54 polled by respondent No. 1. In his election petition the respondent alleged that the appellant	 in collusion with the electoral officer	 surreptitiously introduced names of 16 persons representing a taluk board after 3 p.m. on April 17	 1974 and that this act of his constituted a corrupt practice within the meaning of section 123 of the 1951 Act and that the election was void. The High Court set aside the election on the ground that any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nominations fixed under section 30(a) was illegal	 and after deducting the 16 votes cast by those persons from the total votes polled by the appellant	 declared the respondent duly elected. Allowing the appeal in part and remitting the case to the High Court. HELD : (1) There was no telling material other than speculation or weak suggestion that there was corrupt participation on the part of the officers. The material link to make out invalidation of the election on account of corrupt practice under section 123(7) was missing because it had not been made out in the evidence that there was collusion between the second respondent and the appellant. [201A] 2. (a) The expression 'last date for making nominations ' must mean the last hour of the last date during which presentation of nomination papers is permitted under section 33 of the 1951 Act. In short section 23(3) of the 1950 Act and section 33(1)	 (4) and (5) of the 1951 Act interact	 fertilise and operate as a duplex of clauses. So viewed the inclusion of the names in the electoral roll after 3 p.m. on April 17	 1974 is illegitimate and illegal. [204F] The sixteen names brought into the electoral register subsequent to 3 p.m. of April 17	 1974 must be excluded from the reckoning to determine the returned candidate. [205E] 194 Baidyanath ; and Ramji Prasad Singh ; referred to. (b)The prohibition contained in section 23(3) of the 1950 Act is based on public policy and serves a public purpose. Any violation of such a mandatory provision conceived to pre empt scrambles to thrust into the rolls	 after the appointed time	 fancied voters by anxious candidates or parties spells invalidity and there can be no doubt that if	 in flagrant violation of section 23(3)	 names have been included in the electoral roll	 (he bonus of such illegitimate votes shall not accrue	 since the vice of viodance must attach to such names. [202F] (c)In our electoral scheme as unfolded in the 1951 Act every elector ordinarily can be a candidate. Therefore	 his name must be included in the list on or before the date fixed for nomination. Otherwise he loses his valuable right to run for the elective office. It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. [202G H] (d)Section 33(1) specifies that the nomination paper shall be presented "between the hours of 11 o 'clock in the forenoon and 3 o 'clock in the afternoon". That means that the duration of the day for presentation of nomination papers terminates at 3 o 'clock in the afternoon. If an elector is to be able to file his nomination paper	 his name must be on the electoral roll at 3 p.m. on the last day for filing nominations. So the temporal terminus ad quem is also the day for finalisation of the electoral register and by the same token	 that day terminates at just that hour when the returning officer shuts the door. [204C] (e)The inference that could be drawn from section 33(4) is that there must be a completed electoral roll when the time for filing the nomination paper expires. Therefore	 the final electoral roll must be with	 the returning officer when the last minute for delivering the nomination paper ticks off. Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors	 introduce a disability for such subsequently included electors to be candidates for the election. [203D] (f)The cumulative effect of the various strands of reasoning and the rigour of the language of s.23(3) of the 1950 Act leaves no doubt that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency	 must be visited with fatality. [203E] [The case had been sent to the High Court for scrutinising the 16 ballots for the limited purpose of discovering for whom	 bow many of the invalid sixteen had been cast.]