BALDEV SINGH versus TEJA SINGH SWATANTAR (DEAD) & ORS.

BALDEV SINGH

TEJA SINGH SWATANTAR (DEAD) & ORS.

January 24, 1975

[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Election-Conduct of Election Rules, r. 63-Returning Officers duty to re· count, when arises-Power of Court to order recoum-Scope of. .

For Parliamentary seat in the State of Punjab the appellant, candidate of the Akali Dal, and the first respondent, the nominee of the Communist Party of India, were two of the contesting candidates. The total number of votes polled were 344073 out of which 7663 were invalidated. The first respondent was de· clarecf elected by margin of 210 votes. Even at the time the counting was com· pleted the appellant applied to the Returning Officer for recount but the applica-c tion was rejected as premature. Soon after the. announcement of the votes polled by each candidate the appellant applied again for recount, under r. 63 (2) of the conduct of Election Rules. The Returning Officer rejected this application also. The appellant filed an election petition and contended that, the attitude of the counting staff was hostile to the appellant and his party, and that there were many irregularities in rejecting votes in favour of appellant, in accepting vote in favour of the !st respondent, and in the counting and prayed for general recount.

The High Court, by an interim order ordered limited recount of votes in one of the segments of' the constituency and that order was affirmed by con-sent order in this Court 'to cover the votes of both the contestants. This recount revealed some errors but did not tilt the scale in favour of the appellant. The election petition was ultimately dismissed by the High Court.

HELD : ( 1) On \he evidence there is no force in the appellant's conten· tion about either official bias or of violation of rules. If there had been any mani-pulation by the counting stall' the matter would have been brought to the notice of the Returning Officer and the senior officers present for supervising the count-ing and deciding disputes, reference to it would have been made in the two ap-E plications for recount, and in the appellant's application to the Election Commis-sioner for inspection. Moreover, the alleged biased behaviour is disproved by the accuracy disclosed in the recount, the marginal error being more or less similar in the case of both the candidates. [388 C-F]

<2) The Returning Officer was in error in disallowing the recount. Under r. 63 the mandate for recount is not the exception, and refusal is restricted to cases, where the demand itself is 'frivolous or unreasonable'. Where the margin of dif· ference i~ minimal the claim for fresh count cannot be summarily brushed aside F. as futile or trumpery. If formal defects had been misconstrued as substantial in· firmities or vice versa· resulting in wrongful reception or rejection, the s<X'ner it was set right the better, especially when plea for second inspection b.ad been made on the spot. Prestige or fatigue should not inhibit fresh or partial check. The instructions contained in para 17, cl. (nn) of the Procedure for Counting in the Handbook for Returning Officers requires the Returning Officer to ensure further accuracy in the counting of votes by making 5 % test check. The Returning Officer, in the present case, had not done so, but that is no ground for this Court td order recount or to reverse the decision of the High Court refusing recount. [385 G-386 B; 392 C-G]( 3) While the Returning officer .should be liberal, the power of the Court to order recount which is undoubted, should be exercised sparingly. Even if there is difficulty in giving the serial number of voting papers illegally rejected or receiv-ed an application made for inspection of ballot boxes mmt give material facts whlch would enable the tribunal or the Court to consider whether in the interests of justice, the. ballot boxes ~.hould b~ insp~cted or ~ot. .In dealing gen~ral allega· t;ons that valid votes were llilProperly re1ected or 1nvahd votes were •moroperly accepted, would not serve th111 purpose which is provided for ins. 83(1)(a). In· dealing with this question the importance of secrecy of the ballot papers cannot

10-423SCij75

hr ignored. The statutory rules framed unde~ Act ar~ int~i:ded to provide ad~­quate safeguard for the examination of the vahd1ty or !nvahd~t¥ of votes for their proper counting. Care must be taken to see that elect10n pet1t10ners do not. ge~ chance to make roving or fishing enquiry into the ballot boxes so as to Justify their claim that the returning candidate's election is void, and to threaten the certainty of the poll by fiippan•. recounts. [390 D-H; 392 G-H; 393 C-DJ

Jagiit Singh, A.I.R. 1966 S.C. 774, 783 and Chanda Singh v. Choudhary Shiv Ram Verma, Civil Appeal No. 1185 of 1973, decided on 20-12-1974, followed.

In the present case. the High Court construed r. 56 of the rul~s in the light of r. 38 and tool:: the view thM the ballot paper shall not be reiected merely on the ground of formal defect as the accidental omission of the signiiturc. of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertance or lapse of the Presiding Officer or the Polling officer, and ordered limited recount rightly. However, the number of totally rejected ballot papers of all candidates when subjected to repeated scrutiny yielded disapp;.1inting results from the point of view of the. appellant. Out of 1096 rejected ballot papers only 17. claimed by the appellant, and 7, by the first respondent, were found faulty. Therefore, the High Court was right in refosing to grnnt recount on comprehensive scale. (387 E-HJ

( 4) Even in the application to the Election Commission the plea for inspection of the used ballot papers was primarily confined to one Assembly segment and the rejected ballots of other assembly segments. In regard to that plea, the petition gave details, but not scintilla of evidence, on which the Court could act, was present on the record to prove prima facie, what has been alleged. There-fore. refusal of recount was not imp10per. [391 B, D-E·]

CIVIL APPELLATE JURISDICTION': Civil Appeal No. 233 of 1973. From the judgment and order dated the 18th October, 1972, of the Punjab and Haryana High Court in Election Petn. No. 2 of 1971.

Hardev Singh, "11'1. S. Gupta, and R. S. Sodhi, for the appellant.

S. C. Agarwala.. for respondent no. 1.

M. R. K.. Pillai, for respondent no .. 4.

The Judgmer:t of the Court was delivered by

KRISHNA IYER, J. The dual prayers in the election petition, by the worsted appellant, related to (a) invalidation of the 1st res-pondent's election; and (b) the further submission that inst.e:id, the ·petitioner/appellant be declared successful from the 12-Saiigrur Parliamentary constituency. The petition was dismissed by the High Court and the appellant has repeated both his reliefs in this civil· appeal. However, by the time the appeal came up for hearing, the J st respondent, the returned candidate, passed away, but Hari Agrawala, Advocate, has sought to appear for an elector from the constituency, on the score that the whole constituency is, sense, before the Court and anyone from the consti-tuency is entitkd to oppose the election petition and also the election appeal. There is no doubt that the democratic order sustains itself on the rectitude at the polls and disputes affecting elections are not like private litigation but of public concern. Viewed thus. the question raised is nm free from do~.1bt and indeed it may be appro-priate for Parliament to consider whether provision analogous to

s. 116 of the Representation of. the People Act, 1951 {hereinafter called the Act, for short) enablmg the constituency to be' alerted and to int;,,rvene even at the appellate level, should not be explicitly pro-vided for, as at the trial stage. Be that as it may, we do not think it necessary to do anything more than hear Shri Agrawala more as amicus curiae than by any right inhering in an elector to intervene in the appeal. The decisions brought to our notice do not clothe an officious elector with right to be impleaded in appeal pro bono publico, absent express words to that effect. At the close of the appellant's submissions we did not f.eel the need to hear Shri Agrawala, since nothing in the persuasive arguments of Shri Hardev Singh induced us to alter the finding of the High Court on the sole and central issue of right to recount.

The 111w regarding recount is, by now, well settled although defeated parties are not disenchanted from challenging the validity of the count through election petitions and persistent appeals. On the other hand, election petitions make averments manipulated to meet the requirements each new decision insists on. Even so, the facts of this case-not the merits of the claim-prompt us to make pertinent observation. When the primary grievance of party is 0 error or other vitiating circumstance in the count and some ground not 'frivolous or unreasonable' exists, many candidates 1rek into the High Court complaining of ignored demands for fresh countin?, despite the existing guidelines in this bel1alf. The circumstanc' •. , present here constrain us to make some concrete observations on the subject at later stage in the hope that election authorities will res-E pond sensitively on demand and reduce, by ready recount, the avoid-able feeling of injustice of rebuffed rivals in close contest. The volume of election litigation may well shrink given more creative imagination and liberal approach in the exercise of powers under r. 63 of the Conduct of Elections Rules, 1961, instead of being rigid, resistant and indifferent. stitch in time saves nine.

FACTS

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 simple issue of recount being involved in the whole case?) TI1e 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. T.he total votes polled were of the order of 3,44,073 cf whicb 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 :md 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 cog.nting was completed on March 12. 1971 the petitioner presented an application to the Returning Officer demand-ing 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-r. ( 1) of r. 63 of the rules, the petitioner made second, timely, application for recount under sub-r. (2) of that rule.. The Returning Officer, however, reje<;ted this application also although here were sat out several - grounds, some of which are the same as those urged in the election petition itself. The petitioner, however, moved the Election Commis.sion for recount under sub-r. ( 1) of r. 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 sc:crecy of the ballot' directed the District Election Offi~ cer of Sangrur District to open the sealed box of votes polled in favour of the candidates in respect of 86-Dhuri Assembly Constituency, segment of 12-Sangrur parliamentary constituency, and the' paekets containing the rejected votes of the Sangrur Parliamentary Consti-tuency and p1;rmit the appellant to inspect them. However, this Jpention was not gone through since the High Court, when moved by writ petition, stayed the order of the Commission; and, thereafter, regular elec1ion petition was filed where the, whole focus was turn-ed on the issue of recount. The various gi'ounds warranting recount put forward by the petitioner were duly denied by th1; 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 consent order by this Court, ampli-fying the recount to cover the votes of both the contestents. This revealed some errors but did not produce the desired result of ·tilting the scales and the petitioner pressed for wholesale recount all.egir:g serious infirmities which we will presently refer to. The petitioner has set out as full statement as he could of the material facts and particulars on which he relied in his election peti-tion. The prejudicial features about the telling process were both general and segmantwise. Let us take look at them. The Akali Dal w~ the ruling party and the subordinate services had pressed militantly for increased dearness allowance and the State Government is alleged to have rejected the plea even for interim relief, with alleged hostile repercussions :"The hostile attitude of the Subordinate Services Federa-tion 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 super-visors at different stations to act ma!afidely, 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 ?etitioner had received majority of votes but in the counting of the votes which was done in an unfair, uniust, illegal and malafide manner, the Returning Officer, Shri C. D. Cheema, declared resoondent No. 1 electeld though in fact he had not secured majority of votes.

Prompted 1:zy the same animus,

"the counting agents of the petitioner were not ~llowed 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 wrong-fully accepted and counted in favour of the returned candi-B date. 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 these assistants and other staff that they had been directed not to allow any counting agents or candidate' to know or note down the serial numbers of the ballot papers."

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 number by the telling agents of the candidates. These mutations in methodology were motivated by the need to secure better the secrecy of the vote, sanctified principle of free elections, and applied to the whole country. But 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 bi1y the telling agents of the scrutiny of the voting papers.

The erection 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 or mix up these distinct mischiefs or mistakes or switch grounds from one to . the other. We will examine' the omnibus criticisms and special complaints voiced in the petition against the background of brooding fear of negligible lead the 1st respondent had obtained as being possibly due to un-witting error iu the considerable, continuous counting simultaneously on several table:s, in envfronment not altogether tranquil.

The petitioner levelled many general accusations, apart from _bias qf 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% 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 dause (nn) of para 17 of the Procedure for Counting given at p. 7 4 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 s?all be counted by you. You wm make your selection of thIS five per cent in such manner that it contains bundles pertaining to th<: different contesting candidates." .

P. W. 5 was unmindful of this guideline, which was faux pas. While we a:re not disposed to direct recount solely on the basis of this peccadillo, we stress the need for strict !l-dherence to instructi~ns calculated to make returns error-proof by officers concerned. Cavalier attitude or jaded indifference cannot be condoned.

The petitim~r has itemised separate infirmities in regard to each segment witl1 inventive ability and imaginary precision. But W<~ are not inclined to attach weight to these seeming grievances in .. the light of P. W. S's clear testimony that barring the requests for recount 'no complaint of any kinli 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 for·ce in the petitioner's be wailing about official bias and violation of rules. One complrunt 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 clear departure in the present system, rec1~ntJiy 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 thdr election petitions or elsewhere. Some rulings of this Court (see for eg. J. B. Singh v. K. Behari) (1) based on the earlier practice of printing serial ntumbers had indicated the need to give these numbers to persuade 1he,Court to grant recount. The change in the method of printing the serial num-bers obviously makes it difficult to observe what is at the back of tile paper and we agree that this omission cannot go against an otherwise well-grounded request for inspection of ballots by court. Judicial ;approach must be readjusted to the new bal'lot printing. But the question is, has the appellant rested his bare wish on other telling testimonial basis -Noni~ that we can discern. Nor can the reform in the numbering on the back of the ballot be 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, key witness in the case, P.W. 5, was also examin-~d. . We have th~ additional circumstance of an application for an mtenm count which was allowed partially with reference to Sherpur censtituency (a segment of the concerned parliamentary constituenc:y). While many issues related 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 : ------

(1) (1970) 1 S.C.R. 852.

"Is the petitioner entitled to insptction, secrutiny and recount of tho ballot papers and, if so, to what ex;tent ?"

The interlocutoriy order really covered the crucial issue aforesaid. The court held that case for inspection and scrutiny of votes had been made out and observed :

"Issue no. 6 is, accordingly, found in the petitioner's favour and the interests of justice require that the inspection ~,nd scrutiny prayed for be allowed."

Although this might appear to be widely worded, the Court has confined that scope of this recount by cautious direction : " .. since the petitioner's allegation with regard to the rejection of such votes which do not bear die prescribed signature is confined to the Sherpur Assembly constituency alone and the number of such votes is stated to be 450 ... l consider it expedient at this stage to inspect and scrutinise only the petitioner's rejected votes relatin~ 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 oi both candidates.

The main ground which appealed to the High Court in making this order for fresh inspection, scrutiny and recount of the She:rpur 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. 5 6 of the rules in the light of r. 38 and took the view that the ballot paper shall not be rejected merely on the ground of such formal defect as the accidental omission of the signature of the Presiding Officer, without the Returning Officer pro-ceeding 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 recount was rightey undertaken. However, the number of totally rejected ballot papers of all the candidates when subjected to repeated scrutiny yielded disappointing results from the point of view of the petitioner. Out of 1096 rejected ballot papers only 17 c!Qimed by the petitioner and 7 by the 1st respondent were founC: fa"u!ty. One of the rejected papers of the petitioner was mutilated and its rejection was thus justified. The net result was tha~ the petitioner gained 16 votes and the 1st respondent 7. The le::id being only 9, proved colourless so far as the conclusion was concerned. Undaunted by the flimsy difference, the petitioner hope-fully urged rhat the other segments of the Parliamentary constituency shculd be similarly put through second inspection and recount. The basis being jejune. the learned Judge declined the request. How-ever, the general contentions raised by ~he petitioner about the unfair counting and bi<1:;ed processing were' examined by the High Court. Those contentions were :

"1. The attitude of the countinl! staff was hostile to the petition~r and his party. -

2. The petitioner's votes w~re rejected for. want of ~1e mark or signature prescnbed under section 83, wh1fo similar votes of the respondent Teja Singh Swatantar 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 number of votes marked in favour of the peti-tioner were rejected simply because they were smudg-e:d due to folding of ballot papers.

5. That some of the votes counted for the contesting res-JJOndent were invalid because of multiple markings while others were mutilated and the markings thereon did not clearly indicate for whom they had oeen cast."

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 manipula.tion by the counting stafl' the matter would have been immr.tliately 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 applica.tion 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 plaJy has been established in their functioning in the election proce§s over the last span of quarter of 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, non-partisan prese~e of senior officers to supervise the counting and deciding of disputes regarding the reception and rejection of vores etc., was reassuring factor. The conclusion of the learned Judge, which meets with our assent, was expressed thus :

"In view of these facts, I am of the opinion that no case has been made out for any further inspection or scrutiny of ballot papers, especially when we find that the claim of the petitioner that in Sherpur segment as many as 450 votes polled by him had been rejected solely on the ground! that they did not bear the· prescribed signature or the mark, but 200 similar votes were counted for the respondent, stands falsiified by the scrutiny that has already been undertaken. Scrutiny of votes of the remaining segments will be nothing but fishing or roving enquiry which is not permitted by ~~

The general charge of hostility of subordinate governme:nt staff in counting is unproved, as already held. Even so, we must underscore

the u~t .importance of the indepen~e~ce, fai{ness·· and. activism of' the ElectiOn personntl from the Comm1ss1on to 'the coUiitillg-staff. _ ·ff their discretion is sensitive to the party in ppwer -Qr' their antipathies are inflamed during election time, th.e cherished parliamentary 51JStem will be the casualty. Every conscientious citizen has pJJblic duty to desist from. making reckless mud-slinging and tendentious smearing_ of the men who makes the machinery, promoted by chimerical doubts,· · and there is cast countervailing obligation on all who make up the election personnel to be knowledgeable, sensible, sympathetic, sensitive and stem· to every candidate alike. Even seeming stiffness on chumm-ing up ot ignorant obstinacy will discredit the instrument.

In the Returning Officer's evidence (as P :w. 5) we find an obscure reference to telephonic call by the Prime Minister even as the count-ing was going on. He deposed :

"It is correct that when the counting of postal ballot papers was going on, D. S. P. Charan Singh of the Punjab Potice, who was then on duty at the gate, told me that there . was telephonic call for me. He whispered this in my ear. I, hoWever, asked him to say it loudly in the presence of . everyone present from where that call was. He then said it was froin the Prime Minister of India. As I was busy in counuag I didnot consider it proper to attend to the telepho-nic call and I refuseti to go to the telephone. I also did _.not ask all\yone to receive the message meant for me. I did not instruct Shri Sher Singh, who was then the Sub-Divisional _Magistrate, Sangrur, to go and hear that telephone and I do not know whether he ever received any telephonic message."

:If this were true, it was unfortunate to·say the least. If it were untrue, the _officer's glib-tongued testimony should have invited censure. Any· way, there is rlo tangible trace, anywhere in the record, even to vague suggestion of influencing the counting by the Prime Minister. It also looks incredible especially since neither of the serious contestants is 3: Congress candidate. Frivolous suggestions linking persons in high office should not be allowed to be flung in court, without sound basis ·previously laid. The same witness has unburdened his bosom in the witness box to swear that the Education Minister of the State (the ruling -party was the Akali party and his quondam Personal Assistant was the candidate in the constituencv) desired to 'see' him when the fever of election was on. P.W. 5 said on oath in cross-examinatioJ! :

"It is CC?rrect that S. Surjit Singh, P.W. 4, who was the then Educa1ion Minister, Punjab, visited Sangrur in the course of the election campaign several times. I do not know ·· if S. Surjit Singh was camping at Sangrur on 10th, 11th or 12th of March, 1971. I, however, recollect that on the even-ing of 11th March, 1971, the Superintendent of Police told me that S. Surjit was at his residence. The Superintendent of Police did not give me any message and merely said that S. Surjit Singh wanted to see me. I, however, could not see

him as I was busy at the time and later when I went to the residence of the Superintendent of Police, I foun4 that Si. Surjit SiB~ had already left."

If it is true, it is unhappy, but it has the flavour of fiction. Further if it was true, it ~ave the appearance to outsiders of pressure by Minis-. ters on the poll officers-a vice which must be condemned. If it were untrue, the officer has tlamned an innocent Minister.

Another fatal blo\y to the plea for recount of other segments press-ed 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 in-valid votes etc., with numerical precision and wonder of observation possible under the present system of counting only by resort to re-sourceful fictfoii or extra-sensory perception. Disingenuous awrments do not promote prospects of judicial recount and will be dismissed as devices to eiomply with requirements suggested in some ruling or other. Counsel did press before us many citations, few of which alone we propose to refer to, the ground covered being overlapping, the law laid down, the sam1~, and the determining role being the judic:ial res-ponse to the key facts of each case. In Jagjit Singh(1) this Court stated:"Vague or general allegations that valid votes were improperly rejected, or invalid votes were improp~rly accepted, would not serve the purpose which s. 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the· intere!~ts of justice, the ballot boxes should be :~ pected or not. In dealing with this question, the im-portance of the secrecy of the ballot papers cannot be ignored, and i.t is always to be borne in mind that the Star tutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes for their proper .counting. It may be that in some cases, the ends of justice would make it neces-sary for the Tribunal to allow party to if\spect the ballot boxei; and consider his objections about the improper acceptance or improper rejection of votes tendered bv voters at any given election: but in considering the require-ments of justice, care must be taken to see that el~:tion peti~one;s do not get chance to m~ke roving or fishing enqmry m the ballot boxes so as to JUStify their claim that the returned candidate's election is void .. We do not pro-JJOSe to lay down any hard and fast rule in this matter: indeed. to attempt to lay down such rule would be im:xpe-dient and unreasonable."

The law has been. the same, before and after (Ram Sewak Y adav v. Hussain Kamil Kidwai(l); and Swami Rameshwaranand v. Madho Ram(2). judicial recount is not matter of right (Sumitra Devi v. Sheo Shankar([3]) and convincing, not conclusive, specificity is of the essence.

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 recount ~n comprehensive scale. It is noteworthy that P.W. 5 had heard both sides on the demand for recount. He has sworn significantly;

"No request was, however, made to me by the petitioner or his counsel S. Gurdev Singh for check count or random count. I vehemently deny the suggestion that the order Exhibit P.W. ·5/b.1 was not dictated in open soon after the announcement of the verbal order rejecting the application: for recount. While arguing the application for recount the petitioner's counsel said that the recount may be confined only to the votes relating to Dhuri Assembly constitve!J.C}" and his request for recount of the remaining votes may be ignored."

Even in the application to the Election Commission the plea for ins-pection of the used ballot papers is primarily confined to Dhuri Assembly segment and the rejected ballots of other assembly segments . . Thus it is fair inference to draw that the grievance centred 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 scintilla of evidence on which court could act is present on the record prima facie to prove what has been alleged. Therefore the refusal of recount was not im-proper.

This case has made us reflect anxiously on the dichotomy in the matter of recount between the oounting station and the court hall. We think it necessary to elucidate the legal lines to be drawn at the two stages, as this is fit case which calls for such demarcation.

The largest democracy in the world, India, naturally has the most numerous electorate: for territorial ·constituency. Several thousands to few lakhs of ballots for constituency are polled and have to be inspected and counted in rapid process; computers and like electronic devices which achieve in twinkle what manual eyes and hands take Joni! hours to perform are denied to us due to under-development and indig:ence. ffut we have human resources in abun-dance, to sort out, bundle up, count, check, scrutinize and so on. Our poll finale relies on human power, and judging by the millions of votes which have passed through the assembly-line processes of mix-ing. bundling, scrutinising, counting and rebundling-what with mam-moth numbers and continuous work-the errors are microscopic. Ttli:; tribute to Indian ability goes to the lesser level staff-the clerks and

-----------

(!) (1964) 6 SCR 238; (2) 40 E.L.R. 281. (3) A.I.R. 1973 S.C. 215.

teachers, say-who bear the mechanical brunt of the Himalayan labours' Wh1:n colossal heaps of votes are processed, the tellers may make chance mistakes. Even computers are not totally error-proof and, tu err is human, physically fatigued and brain-fagged as the:y may be occasionally. Scrutiny by vigilant officials and test-c~ecks .may be good but jaded spirits. cau~e s~ips .. Co1!1placen~ assumption of Jpe!1'ec-tion when the operation rs gigantic, is frailty of abd'urate mmds. That is why realism has induced r.63 and issuance of instructions to returning officers, rooted in practical wistiQlll. Given lively realism all'd imaginative understanding in the Returning Officers, many honest-ly sceptical and legit~ately suspicious candidates who have lost the election may be stilled in their doubt by recount, and the wi~er, after all, has no vested interest in error and cannot reasonably ob1ect. Such is the interpretative perspective, r.63 which has wrongly been lost sight o~ by P.W. 5, the Returning Officer, in the present case.

We' frown upon b:ivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of r.63 that allowance . of recount is not the exuption and refusal is restricted to cases where the demand itself is 'frivolQW;' or 'unreasonable'. These are strong words. The circumstances off each case decide. Where the margin of difference is minimal, the claiiu. fot. ·fresh count cannot be summari-ly brushed aiside as futile or trumpery'. If, as in· $is case,, for the Sher-pur segment, uniform view, founded in legal error, has led to· wrong rejection of votes, rectiftcation by recount on · tl)e spot, when demand is made, would have been reasonable. If formal defe,~ts had been misconstrued at some table as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, thetsooner it was set right the bt:tter, especially when plea for second inspection had been made on the spot. Many practical circumstances or legal mis-c.onceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit fresh, may be partial, d1t'.ck. ~ course, baseless or conoocted claims for recount or fabricated grounds for inspection or specious complaints of mis-· takes ini counting when the . gap is huge are obvious caises of frivolous and unreasonable demands for recount. Malafide aspersions on counting staff or false and untenable objections regarding· validity uf votes also fall under the same category. We mean to be illustrative, ' .. not exhaustive, but underline the need, in appropriate cases, to be reasonably liberal in re-check and re-count by Returning, Officers. ·After all, fairness at the polls must not only be manifest but misgivings a~t the process must be erased at the earliest. Indeed the Instruc·· tions to Officers are fairly clear and lay down sound guid~lines.

Judicial power to direct insrection and recount is undoubted but will be exercised sparingly. In recent decision Chanda Singh v. Choudhary Shiv Ram Verma(!) . this Court . observ.cd :

"A artain amount of stability in the electoral process is essential. If the oounting of the ballots is interfered with by too freque_nt and ftjppant recountJ by courts new threat

(I) Civil Appeal No. 1185 of 1973, do:idccl on 20-12-1974;

to the certainty of the poll system is introduced through the judicial instrument. More-over, the secrecy ofl the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be fresh pressure on luckless candidates, particularly when the winning margin is only few hundred votes as here, to ask for recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to dangerous dis-orientation which invades the democratic or~er by inject-ing widespread scope for reopening of decla~ returns, un-less the Court restricts recourse to recount to cases of genu-ine apprehension of miscount or illelgality . or other compul-sions of justice necessitating such dr~~tic step."

This implies no . break from the liberaJ stance. WQ have indicated io.r Returning Officers. Election petitions come to Coutt after month ··and halfl and ripen for trial months later and then ~he appeal, sta-. tutorily vested, inevitably follows. In this Operation I!.itigatjon, which is necessarily protracted, liberal recount or lax re-inspection of votes· may create belated uncertainties, false hopes and hovering sense ·of suspense, long after elections are over, $<Wemments formed and legi~latures begin to function. Moreover, while recount, within the . counting station, With the entire machinery familiar with the pro-cess still available at hand and operational, is one thing, reinspection and recount, which is an elaborate undert"aking with mechanics and machinery of specialise.d nature and which cannot be judicially br()Ught into existence without an amount of time, toil . and expense is diff~rent thing. This Court has laid down clear principles on the subject, meetin,g the ends of justice, but, without opening . the flood• gates of recounts on flimsy grounds. Less election litigatioi:i is sign of the pe'Ople's adult franchise maturity and adventurist election peti-tions are an infantile disease to be suppressed. Our view of r.63, the relevant wholesome instructions by the Commission and the rulings of this Court, 'harmonise with the overall considerations of law and .democracy.

Coming to the facts of this case, we have already indicated that no good grounds for Court order for inspection and .recount, par-ticularly 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 test check •or partial recount, proceeding to fuU rooount it 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. NecessarHy, no foundation for declaration in the appellant's favour has been laid and so we dismiss the appeal but, in the circumst3f!Ces, without costs ..