Holding

A petition for scrutiny and recount on the allegation of miscount requires prima facie proof of counting errors; once such proof is established, the court must conduct a full scrutiny of all rejected ballots and may order a recount, and a ballot paper is invalid only if a mark unerringly identifies the voter, not merely because of incidental marks or omitted later preferences.

Summary

The appellant, an unsuccessful candidate in a Rajya Sabha election conducted by single transferable vote, filed an election petition under section 81 of the Representation of the People Act, 1951 seeking scrutiny and recount on the ground that several valid votes had been wrongly rejected and that the Returning Officer had shown only four of the eleven ballot papers he declared invalid. The High Court dismissed the petition, holding that the petitioner had not proved the alleged errors. The Supreme Court held that a petition for scrutiny and recount must be supported by prima‑facie proof of counting errors; once such proof is established, the court must examine all rejected ballots and may order a recount. The Court clarified that under rule 73(2)(d) a ballot paper is invalid only if a mark unerringly identifies the voter, and that failure to cast later preferences does not invalidate the ballot. Consequently, the High Court’s limited approach was erroneous. The appeal was allowed, the High Court’s order set aside and the matter remanded for full scrutiny of all rejected ballots and a recount.

Issues considered

Whether the petitioner must adduce prima facie proof of counting errors to obtain scrutiny and recount under section 81 of the Representation of the People Act, 1951.
Whether proof of error need be shown for each rejected ballot paper or a general prima facie case suffices.
Whether marks or writings that do not unerringly identify the voter render a ballot paper invalid under Rule 73(2)(d) of the Conduct of Election Rules, 1961.
Whether the failure to cast subsequent preferences under the single transferable vote system invalidates a ballot paper.
Whether the High Court erred in limiting scrutiny to only two of the eleven rejected ballots and refusing a recount.

Legislation cited

Conduct of Election Rules, 1961s. Rule 37A, s. Rule 73(2)(d)
Representation of the People Act, 1951s. 81, s. 94

Subjects

election petitionscrutinyrecountmiscountsingle transferable voteballot paper validityidentification markRepresentation of the People Actelectoral lawproportional representation

Judgment

681
A

SHRADHA DEVI
v.
KRISHNA CHANDRA PANT & OTHERS B
October 26, 1982

[D.A. DESAI. AND A.P. SEN, JJ.]

Representation of the People Act, 1951-E/eciiOn Petition-Elector's duty-
Nature ofproof--Required for a relief ofsCrutiny and recount on the a/legation
c
of miscount in an election 'petition.

The appellant was one-of the 19 candidates for the 11 members to be elected
at the biennial election for electing members to ,Council of States from the
!I"'! consti1uency of el~cted m~mbers of the Uttar Prad"'sh Legislative Assembly, at
the election held on 28th March, 1979. D'
, The election was to be in accOrdance with the ·sYstem of proportional
representation by means of single trans_fcrable ~ote. Io all 421 members exercised
their franchise. Eleven ballot papers were rejected by tbe returning officer as
inValid and the 1st Respondent was declared elected in tbe'14th count.

The appellant, thereupon, filed an election petition Under section 81 of the
.J.951 Act before the Lucknow Bench· of the Allahabad High Cou'rt for Scrutiny
and ·recount· on the allegation of miscount. The appellant alleged that (i) ~he
result of the election in so far as it co~cerns the returned candidate {i.e.)~ .Jst
. respondent-has been materially affected by the improper rejectiori of valid votes·
by wrongly declaring them invalid as weIJ as by improper reception of what other~
wise would haVe been the invalid vote's if the Return-i,ng Officer had been consitent
in his approach, and, therefore, the election of the returned candidate not only
F
shquld be declared void but in bis· place bf a proper computation oi'votes, the
.petitioner sho1,dd be. declared elected to·the 1I th vacancy, (ii) there had been an
., :in1prOper rejection of the valid votes cast in her favour and that 'has materially
;affe~ted the result.of the election; and (iii) even though it was obligatory upon
:the Returning Offic.er to sho'w all the ballot papers 'Yhich be rejected as invalid,
to the candidates and/or their counting agents, he· only showed four out of the
eleven ballot papers heJd invaiid by him and did not show the rest of .them.
Even these four were wrongly rejected and cannot be said to •be covered. by
.Rule 73(2)(d) of the Election Rules. The High Court dismissed the election
petition and hence the appeal by special le~ve.

The appellant contended that {i) where the election is to be held in accor- H'
dance with. the system of .Proportiopal .representation by means of the single
transferable vote, if the µrst preference is properlr ~pg w;cerlainably cast any
682 SUPREME COURT REPORTS (1983] 1 S.C.R,

A error in setting oUt the reinaining preferences would not enable the Returning
Officer to reject the whole ballot paper;· and (ii) every unrequired mark, cutling,
erasure cannot tantamount to any indication which would enable the voter to be
identified but the writing or mark roust De such that the veter can be and not
merely might be identified and there is no such cutting mark or erasure within
the meaning of Rule 73(2)(d) of the Conduct of Election Rules; 1961.

8
Allowing the appeal, the Court

HELD: 1:1. When a petition is for relief of scrutiny and recount on the
allegation of miscoutit, the petitioner has to offer prima facie proof of errors in
counting and if errors in counting. arc prima facie established, a recount can be
c ordered. If the allegation. is of improper rejection of valid votes which is
covere.d by the broad spectrum of scrutiny and recount because of miscount,
petitioner must furnish prima facie proof of such error. If proof is furnished
of some Crrors in respect of ~ome b81lot papers·, scrutiny and recount cannot
. be limited to those ballot papers only. If the recount is limited to those ba11ot
papers in respect of which there is a specific allegation of error and the correla-
tion is established, the approach would work havoc in a Parliamentary consti-
D tuehcy where rnore often_l0,()00 or more vo1es a1e re.ltcted as invalid. [690 A-C]
(

1:2. Law does not require that while giving proof of prima facie error
in counting each head of error must be tested by only sample examination of
some of the ballot papers which answer the error and then take into considera-
tion only those ballot papers and not others. This is not the area of inquiry
0

in a petition for relief of recount on the J?,round of n1iscount. True it is that
'a recount is not granted as of ·right, but on evidence of good grounds for
E believing that there has been a mistake on the part of_. Returning Officer. Prima
facie proof or errOr complained of must be given by the election petitioner and
it'must further be shown that the errors a!e of such q:iagnitude that the result
of the election so far as it affects the returned candidate is materi31ly affected,
then recount is directed. [6_90 C·E]

1:3, It is not the requirement of law that in respect of each baJJot paper
F
rejected as invalid a specific averment must be so mar'e as to identify the ballot
paper and the only those that can.be correlated to the allegations in the petition
specifically and not generally shiill be recounted. Tbat is ·contrary to the
requirement of the Act and the ,Ruies. [6?1 B-C] .

2:1. A combined reading of Rules 37A(I), 73(2)(a) and 73(2)(b) of the
G conduct of Election Rules 1961, makes clear that when voting is in accordance
with the praportional representation by means of the single transferable
vote it is obligatory to cast" the first preference vote fcir ensuring the
validity of the ballot paper and the first preferenee vote must be so cast
as not to leave any one in doubt about it. The remaining preferences are
optional with the elector. He may or may not exercise his franchise for the
H remaining preferences, Rule 73(2) is exhaustive of the grounds on which a
ballot paper at a votir.g at election by Assembly members shall be rejected as
invalid and on a true and indepth r~adin~ of it, it· does· nl)t transpire that the
SHRADHA DEVI v. K.C. PAN1' 683

failure to cast the remaining preferences wou1d invalidate the ballot papers. A
This. is so because under rule 37A(l) every elector has· only one vote at an

-
election irrespective of the Dumber of seats io be filled. The vote is only one
and even if there is more than one seat to be filled in, subseqtient preferences
may be indicated -by the elector and it is optional with him not to exercise
preferences outside his only one vote which he must cast by indicating
unambiguously bis first preference. [695 D-G]
B
2:2. If there is only ..one vote at such an election and the preferences are
as many as there are seats chronologically to be indicated and failure to exercise
preferences subsequent ~o first preference would not invalidate the ballot paper,
it must fo!Jow as a corotlary that if the elector has ~ommitted some error in
exercising his preferences lower down the ladder .the whole of the ballot paper
cannot be rejected as invalid. Thei'efore, it must follow that not only such a
ballot paper has to be -held as valid baUot paper but its validity shall continue
c
upto the stage iO preferences where an error or confusion transpires which would
not perlnit computation of subsequent prCferences .below the level of error. To
illustrate the point~ if as in the present case the voter had option to exercise
11 preferences atid if he has exercised his prefereQces 1 to S correctly and
unambiguously and has eommitted an error in exercising sixth preference and
it cannot be said with certainty for whom the sixth preferences vote was cast, D
the ballot paper has to be held valid in computation of votes upto and'
inclusive of the fifth preference and ·rejected for the preferences down below as if
the elector has not exercised his further preferences which wlls opt.ional with
him. The ballot paper can thus be partially valid ·and this is the logical out~
-. come of the system of voting. [695. F-H, 696 A-C-EJ

3:1. Free and fair election being tbe fountain source of Parliamentary
de~ocracy attempt of the Returning Officer and the Court should be not to
chart the easy course of rejecting ballot papers "as invalid under the slightest
pretext but serious attempt should be made before rejccti~g ballot papers as
invalid to ascertain, if possible, whether the elector has cast his vote with
sufficient cl8rity revealing his intendment. In this cil.se, the Returning Officer
has charted an easy course unsupportable by evidence and the High Court
failed to exercise its jurisdiction of scrutiny of all ballot papers Once a serious F
error has been pointed out in respect of two ballot papers out of a total of 11 ·

..
invalid ballot papers. [700 E-GJ

3:2. Rule 73(2)(d), provides that a ballot paper shall be inValid on wbich,
• there iS: any m"ark or writing by .which the elector can be identified. Section 94 G
of the Representation of People Act, 1951 ensures secrecy of ballOt and it
cannOt be infringed because ~o witness or ot!Jer p6rson shaH be required to
state for whom he has voted' at an election. To ensure free and fair election
w.hich is piv<;>tal for setting up a parliamentary democracy, this vital principle
was enacted in s: 94 to ensure that a voter would be able to vote uninhibited
by any fear or any undesirable consequence of disclosure of bow he voted. As
a corollary it is provided !hat if there is any mark or writing on the ·baUot H
paper whicb. enables the ~l~i;:h?r t<? ~ ~<!~r:Hified the ba1lot paper would be·
684 SUPREME COURT REPORTS (1983] l S.C.R.
A rejected as invalid. But the mark or writing must be such as would unerringly
lead to the identity of the voter. Any m:irk or writing of an innocuous nature
or meaningless import cannot be raised to the levei of such suggestive mark or
writing as to reveal the identity of the voter. There must be some causal
connection between the mark and the identity of the voter that looking at one
the other becomes revealed. Therefore the mark or a writing itself must
reasonably give indication of the voter's identity. It may be that there may be
B extrinsic evidence from.which it can be inferred that the mark was placed by
the voter by some arrangement. [697 F-H, 698 A-DJ

Raghublr Singh Gill v. Gurcharan Singh Tohra & Others, [1980] 3 S.C.R.
i302; followed.

c Woodward v. Sarsons & Another, [1874-75) 10 L.R. (CP) 733, ·quoted with
approval. · \. -
~-
)
3:3. The words. "cati be identified" in Rule 73(2)(d) cannot be interpreted J
to mean "might possibly be identified". The mark or writing Whicti would
invalidate 1he ballot paper must be sucq. as ,to unerringly point iil the direction
of identity of the voter. In the absence of suggested tnark or writing the ballot
D paper cannot be rejected merely because there is some mark or writing on the -~- '
ground that by the mark or writing the voter may be identified. [698 D'·F]

Sohan Lal v. ,.4binash Chander & Others, L1953] 4 Election Law Reports,
55 approved.

3:4. In the instant case, (i) there was specific averment in para 18 of
E the petition that the marks were not such ·as to lead to identity of the ·elector
and that the ballot papers could not be rejected as invalid under rule 73(2)(d).
This allegation is wholly subStantiated . by a casual look at the remaining nine·
·ballot papers. The et_ror is apparent; ·Once the error has been established the
scrutiny and recount had to be ordered as a Primafacie case or miscount is.
ma.tie out and. therefore, the decision of the High Court is liable to be set
aside, (ii) As the High Coutt has not undertaken to examine the validity of
F each ballot paper it would not be proper- for the Su.preme Court to undertake
the same for the first titne here; (iii) tbe position of law having been made very
clear. namely, that once an error is established it is not necessary that the/
pleadings must show error in respect of each individual invalid ballot pap~r. and
a prima facie pr6of of error. resulting in miscount having been established a
scrutiny and recount bas to be ordered. And the serutiny of invalid ballot
•
papers must precede the recount; and (iv) there is no eviderlce or any prior
c arrafigement between candidate and the voter regarding identity and· fv) the
ballot papers could not have_ been rejected on the ground mentioned in rule
73(2)(d), such marks, beibg in this case, somP. erasures or a bracket.
)
[699 F·H; 700 A-A)

CIVIi. APPELLATE JURISDICTION : Civil Appeal No. 277 of
1980,
'
SHilADHA DEVI v. K.c. PANT (Desai, J.) 685

·(From the Judgment and Order dated the I Ith December, 1979·
of.the Allahabad High Court in Election Petition No. 2 of 1978.)

A.P.S. Chauhan, C.K. Ratnaparkhi and D. P.S. Chauhan fot
the Appellant.

A.N. Sen and C.P. Lal for Respondent No. I. B

S.S. Khanduja for RR. ~ & 5.

Miss Karnlesh Bansal for Respondent No. 16.

· The
.
Judgment
~ . of the' Court was delivered
. by C
DESAI, J. An unsuccessful candidate fo~ electfon to council of
States (Rajya Sabha) at the election held on March 28, 1979, is the
appellant. At the biennial election for electing members to Council ·
of States from the constituency of elected members of the Uttar
Pradesh Legislative Assembly, 19 candidates including the appellant D
and. the !st respondent Were duly nominated as candidates. II
members were to be elected. Election was to be held as mandated ·
by clause (4) of Article 80 of the Constitution in accordance with the
system of proportional representation by means· of the single
transferable vote. After the. poll was closod according to the ·time
prescribed by the Election Commission under s. 56 of the Represen- E
talion cif the People Act, 1951 ('1951 Act' for short), t~e Returning
Officer, PW. 4 Satya Priya Singh commenced counting bf votes. As
the election was to be in accordance with the system of proportional
representation by means of the single transferable vote, the
Returning Officer as required by rule 76 of the Oinduct of Electi~n
Rules, 1961 ('Rules' for short), proceeded to ascertain the quota. In F·
all 421 members exercised the franc'his~. Eleven ballot. paperi were
rejected by the Returning Officer as invalid. Accordingly the quota
was worked out at the· value o.f 3417. Respondenfs 2 to 11 were
declared elect'd as each of them s~cured the value of ballot papers
•
greater than the quota in the course of counting. As the counting .G
proceeded further, the contest was between the election petitioner
.(appellant) and the !st respondent and the !st respondent was
declared elected in the 14th count. Once all the 11 vacancies were
fiil~d in, counting was closed.
H
Petitioner filed an election petition under s. 81 of the 1951 Act
· in the High Court of Judicature (Lucknow Bench), Lucknow. The
686 SUPREME COURT REPORTS (1983] 1 s.c.R.

petition was for scrutiny and recount on the allegation of miscount
and directed against the Isl respondent because he was declared
elected to the last vacancy. '• -~

Petitioner alleged that the result of the election in so far as it
ll c~ncerns the returned candidate • 1st respondent has been materially
·affected by the improper rejection of valid votes by wrongly declar-
ing them invalid as well as by improper reception of what.otherwise
would have been the invalid votes if the Returning Officer had been
consistent in his approach and, therefo~e. the election of the ..
returned candidate not only should be declared void but in his place
c by a proper computation of votes the petitioner should be declared
elected to the I 1th vacancy. The petition primarily being for relief
of scrutiny and recount on the allegation of miscount it was necessary '
to allege and offer prima facie proof of the possible errors in the
counting which, if satisfactorily established, would enable the court
to direct a recount. It may be stated that no prima facie proof has ·«'
D
been offered of the improper reception of an otherwise invalid vote
in favour of the Jst respondent and that allegation may be excluded
from further consideration. Petitioner alleged that there has been
an improper rejection of the valid votes cast in her favour and that
has materially affected the result of the election. Petitioner states
E that even though it was obligatory upon the Returning Officer to
show all the ballot papers which he rejected as invalid to the
candidates and/or their counting agents, he only showed four out the '
eleven ballot papers held invalid by him and did not show the rest •
of them. To the question as to why votes were rejected as invalid it
is alleged that the Returning Officer informed the counting agents
F · that there were marks and cuttings in. the ballot papers which may
possibly identi_fy the voters. and, therefore, such ballot papers have
been rejected on the ground set out in rule 73 (2) (d) of the Rules.
Four specific allegations of error, improper rejection of votes other·
wise valid necessitating scrutiny and recount are set out in paras
14, 15, 17 and 18 of th_e election petition. It was also alleged that of
G the four ballot papers shown there was one in which first preference
was ·indicated in favour of the petitioner but that was . illegally
rejected by the Returning Officer on the ground that it contained an
overwriting in respect of the 10th preference. vote marked by the
voter: The second error alleged in the petition is that in one ballot ...
H paper the 4th preference figure was put in a bracket and this was
illegally rejected on the ground that the voter can be identified. The
SHRADHA DEVI v. k.c. PANT (Desai, J.) - 687

third allegation is to the effect that the ballot paper containing a !st A
) 0

preference vote cast in favou.r of the candidate Shri Su rendra Mohan'
was illegally rejected by the Returning Officer on ·the ground that
the voter had given his !st preference vote· at two places whereas in
fact the voter·had given his !st preference vote only to Shri Surendra
·Mohan and had given I Ith preference vote to another candidate B
which could be demonstrably established by scrutiny of the ballot
paper. The fourth error alleged to have crept in the counting was
that the Returning Officer invalidated two other ballot papers on the
ground that there were overwritings in the 8th and 9th preference
votes respectively and that even though these ballot papers did not
contain any mark or writing by'which the voters could be identified, c
they were rejected as invalid contrary to the relevant provision. It
was urged that these prima facie errors when substantiated would
clearly make out a case of miscount and the same can· be corrected
by scrutiny and recount. The scrutiny and recount was sought to be
confined specifically to the decision of the Returning Officer rejecting·
11 votes as invalid. The contentions were crystylised in the course of D
bearing of the appeal by urging that where the election is to be
·held in accordance with the system of proportional representation
by means of the single· transferable vote, if the first preference is
properly and ascertainably cast any error in setting out the remaining
preferences would not enable the Returning Officer to reject the whole
bailot paper as invalid. The second specific contention is that ·every E
unrequired mark, cutting, ·erasure cannot tantamount to any
• indication which would enable the voter to be identified but the
writing or mark must be such that the voter can be and not merely
might be identified and there is no such cutting, mark or erasure.

F
The !st respondent contested the petition, inter alia, contending
that the quota was not 34 i'7 as contended for on behalf of the
petitioner but it was 32'17 and that ·respondents 2 to II received
more than quota h.ence they were declared elected and that the
contest continued between him ~and the petitioner and in the 14th G
count the I st respondent was declared elected as the value ·of his
ballot papers exceeded the value of ballot papers of other continuing
candidates together with the surplus votes not ·transferred.
· He specifically denied though he was not present at the
counting that all the ballot papers rejected at the counting were not H
shown to the counting agents and contended that no error in
counting is shown and that it is not open to.the cour.t to direct recount
SUPREME COURT REl'Oil.TS (198~) 1 s.c.il,

A by first examining the ballot papers rejected as invalid. Some techni-
' ~al contentions were taken by him with which we are not concerned '
in this appeal.

A learned single· Judge of the High Court to whom the· election
B petition was assigned framed as many as 11 issues. on which the·
parties were at variance. In the course of hearing of the petition the
petitioner moved an application for a direction that an inspection of
the 11 ballot papers rejected as invalid by the Returning Officer may
be giyen to the petitioner. The Court directed inspection of four ·
ballot papers to be given as per order dated May 2, 1979. The !st •
c respondent, the returned candidate questioned the correctness of this
order in this Court in special leave petition filed by him. In the
mean time all the disputed 11 ballot papers were summoned from
the Returning Officer and· the Court directed the Joint_ Registrar to
open the sealed packet containing ballot papers and consistent with
·the allegations in paras 14, 15, 17 and 18-of the petition, try to
correlate the ballot papers in respect of which the allegation of
improper rejection may prima facie appear to be of substance and
.
give inspection of those four ballot papers to both.
the parties. The
learned counsel appearing for the petitioner was not inclined to take
inspection in t(Jis truncated manner and disclosed his desire to move
tbis Co~rt against the order gra~ting only inspection of four· ballot
E papers. The learned Judge by his order dated May 16, 1979, directed
that the sealed packet containing the ballot papers shall -not be
opened until further orders of the Court and the same shall be· kept
in safe custody with the Joint Registrar. It appe_ars, thereafter the
petitioner preferred the special leave petition but ultimately the
same appears to have been withdrawn and sought direction of the ·
F. Court for compliance with the' order for showing four ballot papers
as per the previous order. The Court accordingly directed that 1he
Joint Registrar shall open the sealed packet of the rejected ballot
papers and allow the returned candidate or his counsel and the
-petitioner or ·her counsel to have visual inspection of the ballot
papers without allowing the parties or their counsel to handle the
G
ballot papers. Time and date. of the inspection was fixed by the
Court. The Joint Registrar opened the sealed envelope but found
some difficulty in complying with the order of the Court directing
giving of inspection of four ba1lot papers out of 11 rejected ballot
H papers because there was no specification as to. which four ballot
papers were to be the subject-matter of inspecti~n. Ultimately he
• SHRADHA DEVI v. tc.c. PANT (Desai,
, J) ' 689

took recourse . to th.e averments. in the petition, examined each A
_) allegation, attempted to correlate· it to the ballot papers in his hand
and found that only two ballot papers could. be correl~teci to the
allegations made in the petitfon and gave inspection of two ballot
papers and kept other 9 ballot papers, of which he did not give
inspection, in sealed envelope. On this report of the Joint Registrar
the learned Judge called for the sealed envelope, opened up th~
B
envelope in the presence of the learned coun_sel for the parties to
verify ·the correctness of the report of the Joint Registrar and being
satisfied that it was· correct, he made an order to that effect on
> December 5, 1979.
•.

Thereafter the parties went to trial. Neither the unsuceessful
c
candidate, ihe petitioner, . nor the I st respondent, the returned
candidate, stepped into the witness box. On behalf of the petitioner
PW. 1 Shri Shakir Ali Siddiqi, PW. 2 Udit Narain Sharma, election
agent of candidate Shri Surendra Mohan, and PW. 3 Kalpnath Singh
election agent of .the petitioner were examined. RW. 1 Habibul
Rahma~.Nomani, counting· ·agent of Smt. Manohara, RW. 2 Deo
Bahadur Singh, election agent of the returned candidate !st
respondent, RW. 3 Prabhat Kumar Misra, observer deputed by the
Election Commission and. RW. 4 Satya Priya. Singh, Returning
Officer were examined on °behalf of the returned candidate. ·
E
The learned Judge rejected the petition substantially holding
th.at the petitioner has failed to prove that all eleven rejected ballot
papets·were not shown to the counting agel\ts. It was held that
petitioner failed to prove such error in counting which would enable
her to seek relief of scrutiny' and recount. In reaching this conclusion,
with great respect, the learned judge has completely misqireted
F
himself as to the nature of proof ~equired for a relief of scrutiny and
recount on the allegation of miscount. The learned Judge first to~k
up the allegations of ~rrors in.counting, more particularly directed io
the allegation of improper rejection of valid votes which would
materially affect the result as set out in paras 14, 15, 17 and 18 of G
the petition, and then through the help of the Joint Registrar
excluded
\
the nine ballot papers
. without, giving inspection and ·only '
took into consideration two ballot papers which answered the error
as complained of and then proceeded to hold that even if these two
ballot papers rejected as invali<i are taken into account and the value H
of the votes computed, the result ·would not be materially affected
and, therefore, rejected the election petition.
690 SUPREME COURT REPORTS (1983] I 9.C.R.

A When a petition is for relief of scrutiny and recount on the
allegation of miscount, the petitioner has to offer prima facie .proof
of errnrs in counting and if errors in counting are prima facie
established a recount can be ordered. If the allegation is of improper
rejection of valid votes which is covered ,by the broad spectrum of
scrutiny and recount. because of miscount, petitioner must furnish
B primafacie proof of such error. If proof is ftirnished of some errors
in respect of some ballot papers, scrutiny and recount cannot be
limited to those ballot papers only. If the recount is limited to those
ballot papers in respect of which there is specific allegation 'of error
and the correlation is established, the approach would work havoc
in a Parliamentary constituency where more often we find 10,000 or
c more votes being rejected as invalid. Law does not require that while
giving proof of prima facie error in counting each head of error must
be tested by only sample examination of some 'of the ballot papers
which answer the error and then take into consideration only those
ballot papers and not others. This is not the area of inquiry in a
petition for relief of recount on the ground of miscount. True it is
1

D that 'a recount is not granted as of right, but on evidence of good
grounds for believing that there bas been a mistake on the part of
, Returning Officer' (See Halsbury's Laws of Eng1and, 4th Edn., Vol.
15, para 940). This Court bas in terms held that prima facie proof of
error complained of must be given by the election petitioner and it
must further be shown that the errors are of such magnitude that
the result of the election so far as it affects the returned candidate is
materially affected, then recount is directed. What was broadly
alleged by the petitioner in the election petition was that where
election is held in accordance with the proportional representation
by the single transferable vote it would be illegal and erroneous for
the Returning Officer to reject as invalid a ballot paper if after first
F' preference vole is validly cast some error is committed in indicating
the remaining preferences. Instances of error '
is commited in
indicating the remaining preferences:· Instances of error set out in
paras 14, 15, 17 and 18 spelt out a ground that the ballot papers
which were rejected under rule 73 (2) (d) did n6t, contain or carry
G any mark or writing by which elector can be identified and that there
has been thus improper rejection of a vote otherwise validly cast or
which is partially valid. Without allowing inspection of all the dis-
puted ballot papers the learned judge bas accepted that at least two
H ballot papers can be correlated to allegation in para 15 and 17 which
would prove the allegations made in the petition. ,The learned Judge, ..
SHRADHA DEVI v. ICC. PANT (Desai, J.) 691.

however held that the rejection of these two ballot papers was A
correct. A further observation is that even if the rejection of these
two ballot papers is held to be improper, the result of the election so
far as returned candidate Is concerned is not materially affected.
And it would be succinctly pointe\J out that allegation in para 18 in
respect of two other ballot papers is wholly substantiated. Even at B
the cost of repetition it ·must be said that it is not the requirement of
law that in respect of each ballot paper rejected as invalid a specific
averment must be so made as to. identify 'the ballot paper and only
those that can be correlated to the allegations in the petition speci-
fically and not generally ·shall be recounted. That is contrary to the
requirement of the Act and the Rules. c
The impermissible approach of the learned· Judge compelled us
with the consent of learned counsel of the parties to call for the 11
ballot papers rejected as invalid. A direction to open sealed
l
, envelopes was given and at the request of learned counsel for the
parties Xerox copy of each ballot paper was supplied to both the D
sides and the appeal was. further set down
. for hearing.
.'

We now proceed to examine ·the contentions -in this petition.
Let us first have a look at the relevant constitutional and statutory
provisions. Clause (4) of Article 80 provides. that the representatives E
of each State in the Council 'of States shall be elected by the elected
members of the Legislative Assembly of the State in accordance
with the system of proportional repr~sentation by means of the
single transferable vote; The fasciculous of Rules in Parts VI and VII
of the Rules are relevant. Part VI is headed 'Voting at Elections by F
Assembly Members and Council Co11stituencies'. Rule 70 provides
that the provisions of rules 28 to 35 and 36 to 48 shall apply : (a) to
every election by assembly members in respect of which. no direction
has been issned under clause (a) of rule 68, subject to. ihe modi-
fications set out in the sub-rules of Rule 70. The important ·
modification of which we must take notice is the introduction of G
rule 37A setting out the ·method of' voting at such election. It may
•• be extracted :

;,
"37A. Method of voting-(!) Every elector has only H
one vote at an election irrespective of the number of seats
to be filled.
692 StJPllEMB cOUR'I: REPOlltS [1983J I s.c.!l:
A (2) An elector in giving his ~ote-

(a) shall place on his ballot paper the
figure I in the space' opposite the n&me
of the candidate for 'whom he wishes to
vote in the first instance, and
. '
B
(b) may. in addition, place on his ballot
paper the figure 2, or, the figures 2 and
3, or the figures, 2, 3 and 4 and so on
in the space opposite, the names of the
other candidates in ,the order of his
preference.
c
Explanation~The figures referred to in clauses (a) and
(b) of this sub-rule may be marked in the international from
of Indian numerals or in the Roman form or in the form
used in any Indian language but shall not be indicated iu
D words".

Part VII is headed 'Counting of votes' at Elections by
Assembly Members or in Council Gonstituencies'. It defines expres-
si()ns such aa 'continuing candidate' 'count', 'exhausted paper'· 'first
E preference', original vote', surplus' transferred vote' and 'unexhaused
paper'. These are techanical terms each having' bearing on the
question of countiµg of votes. 'First preference' vote has been
defined to mean t~e figure I set opposite tµe a name of a candidate;
'second preference' means the figure 2 set opposite the name of a
candidl!te: 'third preference' means the figure 3 'set opposite· the
F name of a candidate, and so on. 'Original vote' is defined to mean
in relation to any candidate, a vote derived from a' ballot p~per on
which a first preference is recorded, for such candidate. Rule 73 pro-
vides for ,scrutiny and opening of ballot boxes and packets of postal
baiiot papers. Sub-rule (2) of rule 73 is material whi~h may be
cxtr~cted:
G
"73. Scrutiny and opening of ballot boxes and packets of
postal ballot papers-

(2) A ballot paper shall be invalid on which-

(a) the figure I is not marked; or
SRRADHA DEVI v. K.c. PANT (Desai, J.) 693

(b) the figure 1. is set opposite the name of more A
_) than one candidate or is . so placed as 'to
render it doubtful to which candidate· it is ·
intended to apply; or

(c) the figure I and some other figures -are set
opposite the name of the same candidate; or B
(d) there is any mark or writing by which the
elector can he identified; or

(e) there is any figure marked otherwise than with
the article supplied for the purpose : c
f- . Provided that this clause shall not apply to a postal
ballot paper.

. Provided further that where the · returning officer D
is satified that any such defect . as is mentioned in
this clause has. been caused by any mistake or failure on
·the part of a presiding officer or polling officer, the ballot
paper shall not be rejected, merely on the ground of such.
defect.
E
Explanation-The· figures referred to iii Clauses (a),
(b) and (c) of this sub-rule inay be marked in the inter-
national form of Indian numerals or in the Roman form
or in the form used in any Indian language, but shilli not
be indicated in words."
/
· F
The Returning Officer while counting votes . at eleciion by
Assembly members has to bear in mind the implication of voting
in· accordance with the proportional representation by means of the
single transferable vote. What is obligatory in this system of voting
is that every elector must exercise his first preference vote. G
Rule 37 A (J) specifies that every elector · has one vote· only
irrespective of the number of seats to be filled in at such
election. Rest are preferences. In order .to - exercise franchise at
such election the elector is under a duty to give his I st preference
vote. Where the !st preference vote is not exercised the ballot·
paper will have to be rejected as invalid as mandated by rule 73 (2) H
·(a) which provides that ·the ballot paper shall be invalid on which
figure I is not mar!!:ed. :Sy the combined reading of rul~ 37A (2) (al
694 SUPREME COIJRT REl'ORTS (198311 s.c.R.

A with rule 73 (2) (a) it unquestionably transpires that in this system
of voting as understood in contradistinction to single member
constituency where a cross has to be placed against the name or the
symbol of the candidate the first preference vote is a sine qua non
. fot validity of the ballot paper .. The provision contained in
rule 37A (2) (b) read with rule 13 (2) (a) alid (b) would manifestly
B show that the elector is not required to exercise all preference avail-
able to him at the election. To illustrate, if as in the present case
there were 11 vacancies; the elector can go on exercising his pre-
ferences up to I Ith number b¥ putting figures I to I I against 1 the
candidates whom the elector wants to accord his preferences
according to his own choice. Bui' while exercising the preferences it
c is obligatory in order to render the ballot paper valid to give first
preference vote. It is optional for the elector to exercise or not to
exercise his remaining preferences. This must be so in the very
nature of things because this system of voting was devised to pro-
vide minority represent'ation. If amongst 421 electors as in the
present case a party has 220 members owing allegiance to the party
and each one can exercise II votes with the reservation that not
D more than one vote can be given to one candidate and that a cross
up to the totality of number 11 can be placed against 11 different
candidates, no one else having 201 votes in his pocket can get
elei:ted. To avoid this monolithic political pocketborough of votes
this more advanced system of proportional' representation by means
of the single transferable vote was devised. The very expression
E
'proportiona.I representation' is onomatopoetic in the sense it shows
that yarious interests especially the minority g'roups can secure
representation by this more advanced metlJod of franchise. True,
where there are single member constituencies this system is not
F helpful. But where there are multi member constituencies this
system bas a distinct advantage and the advantage becomes discerni-
ble from the fact that rule 37A (2) (a) provides that an elector in
giving bis .vote !ball place on his ballot paper the figure I in ihe
space opposite the name of the candidate for whom he wishes to
vote in the first instance. The expression 'shall' demonstrates
G the mandate of the sect\pn and when compared with sub·clause (b)
which provides that an elector in giving his vote may, in addition,
place in his ballot paper the figure 2 or the figures 2, 3, 4 etc. which
would bring in sharp focuss the mandatory and the directory part in
clauses 2 (a) and 2 (b). . The underlying, thrust ·of the section
H becomes further manifest by referring to rule 73 (2) (a) and (b).
which provide that a ballot paper shall be invalid on which the
SHRADHA DEVI v. K.c. PANT (Desai, J.) 695
' '

figure l is not marked or the figure 1 is set oppo~ite the name of
A
more than one candidate or ·is so placed as to render it doubtful to
which it is intended to apply. Sub-clause (c) of sub-rule (2) of
rule 73 further brings out the intendment of the provision because it
mandates that the ballot paper shall be invalid on which the figure I
and some other figures I are set opposite the name of B
the same candidate. It, therefore, necessarily, follows that when
voting · is in accordance with the proportional representation
by means of the single transferable vote it is obligatory to cast the
first preference vote for ensuring ihe validity of the ballot paper and
the first preference vote must be so cast as not to leave any one in
doubt about it . .The remaining preferences .are optional with the C
elector. He may or may not exerchise his franchise for the
remaining preferences. If- he chooses n~t to exercise remaining
preferences the ballot paper cannot be rejected. as invalid for
failure to exercise the remaining preferences. Rule 73 (2) is
exhaustive of the grounds on which a ballot paper at a· voting at
.•
r election by Assembly members shall be rejected as invalid and on a D
true and indepth reading of it, it does not transpire that the faliure-
to cast the remaining preferences would invalidate the ballot paper.
This conclusion is reinforced by the provision" contained in
rule 37A (I) which provides that every elector has only one vote at
an election irrespective of the number of seats to be filled. There·
fore, the vote is only one and even if there is more than one seat E
to be filled in, subsequent preferences may -be indicated by the -
elector and it is optional with him not to exercise preferences outside
his only one vote which he must cast by indicating unambiguosly
his first preference.
F
What then ·follows ? If there is only one vote at such an
election and the preference are as many as there are seats chronologi-
cally to be indicated and failure.to exercise preferences subsequent
to firs.t preference would not invalidate the ballot pa per, it must
follow as a corollary that if.the elector has committed some errodn
G
exercising bis preferences lower down the ladder the whole of the
ballot paper cannot be rejected as invalid. To illu.strate, if the
elector has with sufficient ·clarity exercised his preferences, say I io
5 in chronologiCaL order but while exercising bis sxitb preference he
having the right to exercise the preference up to I I, has committed H
an error, the error, in exercising .his sixth preference ·~ould not
render the wltole ballot paper invalid and. his prefere11ce ·up to
>

696 SUPREME COURT REPORTS [19831 I s.c.11.

A 5 will have to he taken into account while computing the votes. We
specifically invited learned counsel on ·both sides to assist us in
examining this aspect as we were treading .on an uncovered - ground.
In fact, we adjourned the matter to enable Mr. Chauhan, learned
counsel for the petitioner and Mr. A.K. Sen, learned counsel for the
respondent to study the problem and 11t the resumed hearing ii was
B not only not disputed but unambiguously conceded that in view ·of
the provision contained in rule 37 A read with rule 73 (2) once the
first preference vote has been clearly ,and unambiguously exercised
the ballot paper cannot be rejected on the ground that lower down
the ladder there was some error in e~e~cising the subsequent pre-
ferences. If this is the correct -interpretation of. ruie 37 A, it must
c follow that not only such a ballot paper has to be held as valid
ballot paper but its validity shall continue up to the stage in pre-
ferences where an error or confusion 'transpires which would not
permit computation of subsequent preferences below - the level .
of error. To illustrate the point, .if as in the present case
the voter had option . to exercise '11 Preferences and if he
D has exercised his preferences I to 5 correctly and unambi-
guously and has committed an erro~ in exercising sixth pre·
ference and it cannot be said with ce~tainty for whom the sixth
preference vote was cast, the ballot paper has to be held valid in •
computation of votes up to and inclusive of the fifth preference
and rejected. for the preferences down below as if the. elector has ·
E
not exercised his furtl]er preferences which was optional with him.
The ballot paper can thus be partially valid. This is not a startling
proposition but is the logical outcome of the _system of voting. No
authority is needed in support of it but one is required it is to be
found in the statement of law in paragraph 636, page 345, Vol. 15
F of the Halsbury's Laws of England, 4th ,Edn. It may be. extracted :

"63_6. Ballot papers rejected in part-Where ai a
local government election or poll ·consequent on a parish
or community meeting the voter is entitled to vote for more •
than· one candidate or at a poll consequent on a parish
G or community meeting on more thab one question, a ballot
paper is not to be deemed to be· void for uncertainty as
respects any vote as to which no \mcertainty ll)"ises and

H
that vote is to be counted".
..
We have examined this aspect in depth because out of 11 invalid
l;>allot papers which we hav~ ml\rked pow in tJie Xerox copie&
SHRADHA DEVI v. IC.c. PANT (Desai, J.) 697

from 'A' to 'K' for identification, ballot paper marked 'B' has been A
rejected under rule 73 (2) (bl by the Returning Officer on the
ground that firgure I appears against two candidates J.P. Singh
and Surendra Mohan. The High Court has accepted the rejection
as valid. It is difficult to accept this view of the Returning Officer
affirmed by the High Court because figure I has been clearly marked
against the candidate- Surendra Mohan and the ligure 11 is noted B
-against the candidate J.P. Singh. There is some. overwriting in the
two strokes of 11 but it must be remembered that explanation
appended to rule 37A permits that the figures indicating preferences
may be marked in the international form of in Indian numerals or
in the Roman form or in the form used in any Indian language but
shall not ·be indicated in wor_ds. All other figures indicating
c
the preferences have been written in Hindi numerals and 11 is
by two strokes having the loop at the top ,slightly overwritten but
the preference is the 11th preference against J.P. Singh, is indisputa--
ble and is clearly visible to the naked eye. Obviously this ballot
., pap~r marked 'B' could not have been rejected oo the ground
D
mentioned in rule 73 (2) (b). '

... We may now turn to remaining nine ballot papers. Remaining
nine ballot papers have been rejected on the ground that by some
mark on the ballot paper itself. the voter can be identified. There E
is a specific allegation to that effect in para 18 of tb_e election peti-
tion. Before we examine each individual ballot paper, let the full
import of the provision be made clear. Rnle 73 (2) (d) provides
that a b_allot paper shall be invalid on which there is any mark or
writing by which the elector can be identified. Section 94 of the
· 1951 Act ensures secrecy of ballot-and it cannot be infringed because F
no witness or other person shall be required to state for whom he
. has voted at an election. Section 94 -\vas interpreted by this Court
on Raghbir Singh Gill v. Gurcharan Singh Tohra & Ors ,(1) to confer
a privilege upon the voter not to be compelled to disclose' how and
for whom he voted: To ensure free and fair election which is ·
pivotal for setting up a parliamentary democracy, this vital principle G
was enacted in s. 94 to ensure that a voter would be able to vote
uninhibited by any fear or any undesirable consequence of disclosure
o(how he voted. As a corollary it is provided that if there is any
mark or writing on the ballot paper wb,i~h enables the ~1.e~to~

(1) (1980] 3 S.C.R. 1302.
698 SUPREME COURT REPORTS [1983] I s.c.R.

to · be identified the ballot paper would .be rejected as invalid.
But the mark or writing must , be such as would unerringly
.lead to the identity of the voter. Any mark or writing of an
innocuous nature or meaningless import cannot be raised to
the· level of such .suggestive m~rk or writing as to reveal the
identity of the voter. In Wodward v. Sarsons & Anr.,( 1) inter-
B
preting an identical provision it was observed as under :

"It is ilot every writing or every mark besides the
number on the back which is to make the paper void,
but only such a writing or mark as is one by which the *
c voter can be identified". '

It would imply that there must be some causal connection between
· the mark and the identity of the voter that looking at one the •
other becomes revealed. Therefore,, the mark or a writing itself
D must reasonably give indication of the voter's identity. It may be
that there must be extrinsic evidence· from which it can be inferred .
that the mark was placed by the voter by' some arrangement, In
this context one can advantageously refer to the statement' of law in
Halsbury's Laws of England.( 2 ) It may be extracted : ,
' '

E "634. Ballot papers rejected for marks of identifi-
cation-Any ballot paper on wbiCb anything is written or
marked by which the voter can' be identified, except the
printed number on the back,, is void and must not be
counted. The writing or mark' must be such that the. vot~r
can be,. and not merely might possibly be, identified"
F
"As respects ballot papers ~hich have names, initials,
figures or other possible marks of identification on them by
which it might be suggested that the voter could be identi-
fied, it has been said that the 'court should look at the
paper and from its own opinion whether what is there has •
G been put there by the voter for 'the purpose of indicating
for whom be votes; if the voter bas not voted in the
proper way (if for examble he has made two crosses, or
some other such marks which might have been intended
B '
(!) [1874-75]')0 LR. (Common Pleas) 733.
...
m4thJldp, Vol, 15, para. 634.
SHRADHA DEVI v. K.c. PANT (Desai, J.) 699

for purposes of identification), but the Court comes to the
-
conclusion on looking at the paper that the 'real .thing that
- the voter has been doing is to try, badly or mistakenly, to
. give his vote, and make it clear for whom he voted; then
these marks should not be considered to be marks of iden-
tification unless there is positive evidence of some agreenient
B
to show that it was so".

In Woodward's -case -the Court came to the conclusion that the
· placing of two crosses or three crosses or a single stroke in line of ·a
cross or a straight line or a mark like imperfect letter 'P' in -addition
to the cross or star instead .of a cross or a cross blurred or marked
with. a .tremulous hand, or a cross placed on the left. side of the
c
ballot paper, or a pencil line drawn through the name of.the can-
didate not voted for, or a ballot. paper torn longitudinally through
the centre, are not marks which would invalidate the votes on the
ground that . the mark was such that the voter .can he identified.
'• Similarly, Election Tribunal in Sohan Lal v. Abinash Chander 0
& Ors.,( 1 ) held that _addition. of a horizonai line after figure I
indicating first preference vote would not invalidate the ballot
paper, unless there was evidence that the horizontal line was drawn
so ·as to reveal the identity of the voter. In the absence of any such
evidence the ballot paper was held valid. It would, therefore,
follow-that the niark or wriring which .would invalipate the ballot E
paper must be such as to unerringly point in the direction of identity
of the votor. In the absence of such suggested mark or writing the
ballot paper cannot .be rejected merely because there is some mark
or writing on _the ground that by the mark or writing the voter may
be identified. One has to bear in m.ind the difference between 'can
be identified.' and 'might possibly be identified'. F

The High Court did not examine the other 9 ballot. papers on
the erroneous view that only two were correlated 'to the averments
.· in the plaint. There was specific averment in para 18 of the petition
that the marks were not such as' to lead to identity. of the elector G
. and that the ballot papers could not be rejected as invalid under
rule 73 (2) (d). This allegation is wholly substantiated by a
• casual look at the remaining nine ballot papers. The error is
apparent. Once the error has been estblishell tl!~ ~nitiny and
H.
(1) (1953] 4 Election Law Report~ 5~
700 . SUPREME COURT RBPOTS (1983] l S.C.R.

A recount had to be ordered as a prima facie case of miscount is made
out and, therefore, the decision of the High Court is liable to be set
aside. At one stage we were inclined to examine the validity of each
ballot paper. But as the High Court has not undertaken that exer-
cise it would not be proper for us to undertake the same for the
first time here. The position of law having been made very clear,
B namely, that once an error is established it is not necessary that the
pleadings must show error in respeet of each individual invalid
ballot paper, and prima facie pr~of of error resulting in miscount
having been established, a scrutiny and recount has to be ordered.
And the scrutiny of invalid ballot papers must precede the recount.
It is furrher made clear that wher7 voting is in accordance with
c · the proportional representa.tion by the single transferable vote a
ballot paper can be valid in part. And it must be remembered that.
every mark or writing does not result in invalidation of the vote
The mark or identification should be such as to unerringly reveal
the identity of the voter and the evidence of prior arrangement

D
connecting the mark must be made available. There is no such
evidence. ·Therefore, the ballot p~pers could not have been rejected
.'
on the ground mentioned in rule 7,3 (2) (d),. such marks being in
this case some eras.ires or a brack~t.

Free and fair election being the fountain source of Parliamen-
E tary democracy attempt of !he Returning Officer and the Court
should be not to chart the easy course of rejecting ballot papers as'
invalid under the slightest pretext but serious attempt should be
made before rejecting ballot papers' as invalid to ascertain, if possible,
whether the elector has cast his vote with sufficient clarity revealing
F his intendment. In this case we are satisfied that the Returning
Officer has charted an easy course unsupportable by evidence and the
High Court failed to exercise its jurisdiction of scrutiny of all ballot
papers
•
once a serious error has beenI pointed out in respect of two
ballot papers out of a to.ta! of 11 invalid bollot papers: Therefore,
\
we find it difficuit to accept the vi~w taken by the High Court.
G Accordingly, this appeal is allowed and the judgment and order of
the High Court are set aside and 1he matter is remanded to the
High Court for further proce~ding accordin~ to law. The High
Court shall examine all invalid ballot papers, ascertain the reasons
for the rejection, satisfy itself whether the reason is valid or un-
H .convincing, and decide the validity 'of the ballot paper as a whole
or in part and direct computation of the votes over again. The
Hij!b Court may bear in mind that the decision of the Returning
siiRAOiiA DEVI v. K.C. PANT (Desai, J.) ?bi

Officer rejecting ballot papers as invalid is subject to review of the A
High Court in a proper election petition (See Halsbury's Laws of ,
England, para §38, page 345, Vol. 15, 4th Edn.).'

It would be open to the High <:;curt to take assistance of the
Chief Electoral Officer or such other person well versed ·in com-
puting the votes in this complicaied system of counting as considered B
necessary to determine the final outcome of recount.

As the matter has been delayed sufficiently, we hope that
the High Court would expeditiously dispose of the same. The costs
of the hearing in this Court would abide the final outcome of the
appeal. c

S.R. Appealallow~d.

'• • ,
"

•