Holding

Inclusion of persons who are not qualified for enrolment in the electoral roll does not constitute a ground for setting aside an election; a person entered in the roll may vote unless disqualified under Section 62(2‑5) of the Representation of the People Act, 1951.

Summary

In April 1996 a biennial election was held for the Patna Teachers Constituency of the Bihar Legislative Council and Nawal Kishore Yadav was declared elected. The petitioner filed an election petition alleging that a large number of persons who were not qualified under the 1950 Act had been improperly enrolled in the electoral roll and that votes cast by these illegal electors materially affected the result. The Designated Election Judge struck out the petition’s substantive pleadings and dismissed the petition, a decision that was appealed to the Supreme Court under Section 116A of the 1951 Act. The Court examined whether inclusion of unqualified persons in the roll and the reception of their votes could be a ground for setting aside an election under Section 100(1)(d)(iii) or (iv) of the Representation of the People Act, 1951. Relying on the distinction between ‘disqualification’ (Section 16, 1950 Act) and ‘not being qualified for enrolment’, and on earlier precedents, the Court held that a person entered in the electoral roll is entitled to vote unless disqualified under Section 62(2‑5) of the 1951 Act, and that mere inclusion of ineligible names is not a ground to void an election. Consequently, the appeal was dismissed and the election stood affirmed.

Issues considered

Whether the inclusion of persons not qualified for enrolment in the electoral roll and the votes cast by them constitute a ground for declaring an election void under Section 100(1)(d)(iii) or (iv) of the Representation of the People Act, 1951.
Whether a person who is not qualified for enrolment but is entered in the electoral roll can be barred from voting.
Whether the Designated Election Judge was correct in striking out the substantive pleadings of the election petition.

Legislation cited

Representation of the People Act, 1950s. 16, s. 19, s. 27(5)
Representation of the People Act, 1951s. 100(1)(d)(iii), s. 100(1)(d)(iv), s. 116A, s. 62, s. 80, s. 86

Subjects

election petitionelectoral rollineligible electorsRepresentation of the People ActSection 100Section 62disqualificationteachers constituencyBihar Legislative Council

Judgment

A SHYAMDEO PRASAD SINGH
v.
NAWAL KISHORE YADAV

AUGUST 28, 2000

B [DR. A.S. ANAND, CJ., R.C. LAHOTI AND K.G. BALAKRISHNAN, JJ.j

Election Laws :

Representation of the People Act, 1951, ss. 62, lOO(l)(d)(ii)(iv) r/w.
Representation of the People Act, 1950, ss.16, 19 and 27(5)-Whether recep-
c tion of votes of persons not qualified to be enrolled in !he electoral roll could
be a ground.for setting aside an election-Held, no; a person enrolled in the
electoral roll cannot be exdudedfrom exercising his righl to vote on the ground
that he did not sarisfy the eligibility requirement uls. 19 or 27(5) of RPA 1950
unless disqualified under s.62(5) of RPA 1951.
D
Biennial elections to the Bihar Legislative Council from the Patna
Teachers Constituency were held in April, 1996. The respondent was de·
clared elected.

The appellant filed an election petition to set aside the election on the
E ground that the registration and enrolment of a large number of ineligible
persons as electors in the electoral roll and consequently improper recep-
tion of votes cast by such illegal electors had resulted in materially affect-
ing the result of the election.

The Election Judge, accepting the plea of the respondent, held that
F the pleadings contained in the election petition were liable to be struck
down consequent whereupon no cause of action survived for proceeding
with the trial of the petition. The aggrieved election petitioner then ap·
proached this court.

Dismissing the appeal, the Court
G
Held : 1.1. Inclusion of persons in the electoral roll by an authority
empowered in law to prepare the electoral rolls though they were not
qualified to be so enrolled cannot be a ground for setting aside an election
of a returned candidate under s.100(1 )( d)(iii) or (iv) of the Representation
H of the People Act, 1951. [683-D]
668
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.J 669
1.2. A person enrolled in the electoral list is entitled to cast a vote A
unless disqualified under s.62(2) to (5) of the 1951 Act. [683-E]

1.3. A person enrolled in the electoral roll cannot be excluded from
exercising his right to cast vote on the ground that he did not satisfy the
eligibility requirement as laid down in s.19 or 27(5) of the Representation
of the People Act, 1950. [683-EJ B

Hariprasad Mulshanker Trivedi v. V.B. Raju, [1974] 1 SCR 548;
Nripendra Bahadur Singh v. Jai Ram Vemw, AIR (1977) SC 1992; uami
Charan Sen v. A.K.M. Hassan Uzzaman, [1985] 4 SCC 689 and Mohinder
Singh Gill v. Chief Election Commissioner, AIR (1978) SC 851, referred to.
c
Ghulam Mohiuddin v. Election Tribunal for Town Area Saklt, AIR (1959)
All 357 and Roop Lal Mehta v. Dhan Singh, (1967) 69 Pun. LR 618, ap-
proved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 376 of 1999.
D
From the Judgment and Order dated 19. 11.98 of the Patna High Court
in E.P. No. 5 of 1996.

P.S. Mishra, Amitesh Kumar, Vivek Singh, L.R. Singh, Chandra Shekhar,
Ms. Swarupa Reddy and Upendra Mishra for the Appellant.
E
Ex-parte for the Respondent.

The Judgme:1t of the Court was delivered by

R.C. LAHOTI, J. Pursu.ant to a Notification issued by the Governor of
Bihar under Section 16 of the Representation of the People Act, 1951 (here- F
inafter the 1951 Act, for short), biennial elections to the Bihar Legislative
Council from the Patna Teachers Constituency were held in April, 1996. There
were four candidates in the fray including Nawal Kishore Yadav, the respond-
ent, who defeated his nearest rival candidate Dr. P.N. Sharma by a margin of
870 votes. Polling was held on 28.4.1996 whereat the respondent secured 3414 G
votes as against 2544 votes secured by Dr. P.N. Sharma. The respondent was
declared elected.

On 24.4.1996 the appellant, an elector duly enrolled in the electoral list
of the constituency filed an election petition under Section 80 of the 1951 Act
calling in question the election of the responc!ent. The only ground alleged in H
670 SUPREME COURT REPORTS [2000) SUPP. 2 S.C.R.
A support of prayer for avoiding the election of the respondent was the registra-
tion and enrolment of a large number of ineligible persons as electors in the
electoral roll and consequently improper reception of votes cast by such illegal
electors which had resulted in materially affecting the result of the election
insofar as the returned candidate was concerned. The bundle of facts consti-
tuting the cause of action as alleged by the appellant are brief! y stated in the
B
succeeding paragraph.

On 22.10.1986 the Chief Electoral Officer, Bihar in exercise of the
powers conferred by Section 27 (3)(b) of the Representation of the People Act,
1950 (hereinafter the 1950 Act, for short) issued a notification No.1248 pub-
c lishing a list of educational institutions of the State which shall be deemed to
be not lower in standard than that of a secondary school. On 29.9.1995 a notice
under Rule 31(3) of the Electors Registration Rules, 1960 was published by the
Chief Electoral Officer, Bihar calling upon all eligible voters who wished to
get their names entered in the electoral roll to apply in Form 19 on or before
6.11.1995. All persons who are citizens of India and are ordinarily residents
D of the constituency and engaged in teaching work for not less than three years
during the preceding six years calculated from !.I !.1995 in an educational
institution not lower in standard than that of a secondary school were eligible
for enrolment as electors in the electoral roll. According to the election peti-
tioner, the authorities entrusted with the task of preparing the electoral roll
E included the names of many a voters in the electoral roll who were not al all
eligible for being so included as they were teaching in the educational insti-
tutions which were neirher permitted to be established nor affiliated nor rec-
ognised by the State Government which was mandatorily required under the
provisions of The Bihar Intermediate Education Council Act, 1992. On
26.12.1995 Dr. P.N. Sharma, the then member of Legislative Council from
F
Patna Teachers Constituency, filed objections to the inclusion of the names of
such ineligihle persons in the electoral roll seeking deleting of their names. In
spite of repeated persuasions made by Dr. P.N. Sharma, the authorities did not
hear and decide the objections and in the meantime the Governor of Bihar, as
recommended by the Election Commission of India, issued notification dated
G 26.3.1996 fixing the schedule of election programme. On or about 1.3.1996,
objections were also preferred by one Dr. Ram Padmadeo seeking deletion of
the names of 1625 ineligible electors from the electoral roll. On 30.3.1996 the
Assistant Electoral Registration Officer-cum-District Magistrate, Patna refused
to consider the objection petition filed by Dr. Ram Padarndeo on the ground
H .
that the objection petition was not preferred in the prescribed proforma and
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 671
further there was not enough time available before the date of filing of nomi- A
nations, i.e. 2.4.1996 to hear and dispose of objections calling in question the
inclusion of as many as 1625 names in the electoral roll. There were other
objections filed by 17 persons laying challenge to the inclusion of 384 names
of electors in the electoral roll which too met with the same fate on 30.3.1996.
The election petitioner alleged that the election was vitiated by the improper
B
reception of votes cast by ineli~ible persons and by non- compliance with the
provisions of the Constitution, the 1950 Act and rules and orders relevant to
the election. Such allegations, as abovesaid, formed contents of paragraphs 15
to 42 along with annexures 1 to 20 of the election petition. The respondent
moved an application before the learned Designated Election Judge seeking
striking out of the said paragraphs 15 to 42 along with annexures 1 to 20 of c
the election petition and submitting that the commission of any illegality and/
or irregularity in the preparation of the electoral roll was beyond the ambit and
scope of Section 100 of the 1951 Act and, therefore, the averments made in
the said paragraphs 15 ro 20 of the election petition along with the said
annexures were liable to be struck down as irrelevant and not furnishing any D
cause of action to the appellant. It was prayed that the election petition was also
liable to be summarily dismissed as c_onsequent upon striking out the part of
pleadings as above said, nothing survived for being tried and adjudicated upon
at the trial of the election petition.

The plea raised by the respondent has prevailed with the learned Des- E
ignated Election Judge. He has held that the pleadings contained in paragraphs
15 to 42 of the Election Petition read along with the annexures 1 to 20 were
liable to be struck down under Order 6 Rule 16 of the CPC consequent
whereupon no cause of action survived for proceeding with the trial of the
election petition under Section 86 of the 1951 Act and hence the same was also
liable to be dismissed. The aggrieved election petitioner has filed this appeal F
under Section 116A of the 1951 Act.

The wle question arising for decision in this appeal is whether the
averments made in the election petition made out a ground for declaring
election to be void within the meaning of Section 100 of the 1951 Act obli-
gating the learned Designated Election Judge to proceed with the trial of the G
Election Petition instead of summarily dismissing the same.

Sub-section (1) of Section 100 of the 1951 Act provides as under:-

100. Ground~ for declaring election to be void. - ( 1) Subject to the
provisions of sub-section (2) if [the High Court] is of opinion - H
672 SUPREME COURT REPORTS [2000] SUPP 2 S.C.R.

A (a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under the
Constitution or this Act [or the Government of Union Territories Act,
1963 [920 of 1963]; or

(b) that any corrupt practice has been committed by a returned
B candidate or his election agent or by any other person with the consent
of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned
c candidate, has been materially affected-

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of
the returned candidate [by an agent other than his election agent],
D or

(iii) by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Con-
E stitution or of this Act or of any rules or orders made under this
Act.

the High Court shall declare the electiun of the returned candidate to
be void.

F It was conceded by the learned counsel for the appellant, as was done
by the learnerl counsel for the election petitioner before the learned Designated
Election Judge, that the grounds canvassed by the election petitioner for avoid-
ing the election of the respondent were covered by sub-clauses (iii) and (iv)
of clause (d) of sub-section (1) of Section 100 of the 1951 Act and it was by
reference to these two sub- clauses alone that the maintainability of the dection
G
petition was required to be decided by the Court.

Shri P.S. Mishra, the learned senior counsel for the appellant submitted
that election of a returned candidate is liable to be set aside if there has been
improper reception of any vote or the reception of any vote which is void. What
H has to be seen is whether a person not entitled to be enrolled under the law as
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 673
an elector has voted and if that be so then it will be a case of improper reception A
of any vote or the reception of a void vote and it would not make any difference
if the inelligible person was enrolled as an elector in the electoral list. It was
further submitted by Shri Mishra that if a person is not qualified to be enrolled
as a voter or is disqualified from voting and still casts a vote taking advantage
of his being enrolled in the electoral list then the enrolment itself being in non-
B
compliance with the provisions of the Constitution or an enactment, the case
would be covered by sub- clause (iv) of clause (d) of sub-section ( 1) of Section
100 of 1951 Act. On a further proof of the fact that the result of the election
insofar as it concerns the returned candidate was materially affected, the elec-
tion would be liable to be set aside. To test the validity of the plea so put-forth
and forcefully canvassed we may proceed to notice the relevant constitutional c
and statutory pr;ivisions.

Article 326 of the Constitution is founded on the doctrine of adult
suffrage. It provides that every person who is a citizen of India and who is not
less than 18 years of age on such date as may be fixed in that behalf by or under
any law Jde by the appropriate Legislature and is not otherwise disqualified D
under the Constitution or any law made by the appropriate Legislature on the
ground of n.on-residence, unsoundness of mind, crime or corrupt or illegal
practice, shall be entitled to be registered as a voter at any such election. This
Article clearly contemplates law being enacted by an appropriate Legislature
providing for qualifications and disqualifications subject to which a citizen of E
India not less than 18 years of age shall be entitled to be registered as a voter
and exercise his right to franchise. Article 327 provides for law being made by
Parliament subject to the provisions of the Constitution with respect to all
matters relating to or in connection with elections to either House of Parliament
or to the House or either House of the Legislature of a State which law may
include provisions for the preparation of electoral rolls, the de-limitation of F
constituencies and all other matters necessary for securing the due constitution
of such House or Houses.

The Representation of the People Act, 1951 was enacted to provide for
the conduct of elections to the Houses of Parliament and to the House or
Houses of the Legislature of each State, the qualifications and disqualifications
G
for membership of those Houses, the corrupt practices and other offences at or
in connection with such elections and the decision of doubts and disputes
arising within or in connection with such elections. So far as the exercise of
right to franchise is concerned there are only two relevant provisions in this
Act. Clause (e) of sub-section (I) of Section 2 defines elector in relation to a H
674 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A constituency to mean a person whose name is entered in the electoral roll of
that constituency for the time being in force and who is not subject to any of
the disqualifications mentioned in Section 16 of the Representation of the
People Act, 1950. Section 62 provides as under:-

62. Right to vote - ( 1) No person who is not, and except as expressly
B provided by this Act, every person who is, for the time being entered
in the electoral roll of any constituency shall be entitled to vote in that
constituency.

(2) No person shall vote at an election in any constituency if he is
subject to any of the disqualifications referred to in section 16 of the
c Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more than one
constituency of the same class, and if a person votes in more than one
such constituency, his votes in all such constituencies shall be void.
D (4) No person shall at any election vote in the same constituency more
than once, notwithstanding that his name may have been registered in
the electoral roll for that constituency more than once, and if he does
so vote, all his votes in that constituency shall be void.

E (5) No person shall vote at any election if he is confined in a prison,
whether under a sentence of imprisonment or transportation or other-
wise, or is in the lawful custody of the police.

Provided that nothing in this sub-section shall apply to a person
subjected to preventive detention under any law for the time being in
F force.

Section 62 can clearly be divided into two parts. One part is sub-section
(1), which is couched partly in positive form and partly in the negative. A
person who is not entered in the electoral roll of any constituency is not entitled
to vote in that constituency though he may be qualified under the Constitution
G and the law to exercise the right to franchise. To be entitled to cast a ballot the
person should be entered in the electoral roll. Once a person is so entered he
is entitled to vote in that constituency. The phrase "for the time being" has been
significantly and strategically cast into the framing of the provision and quali-
fies the expression "entered in the electoral roll of any constituency". It gives
H the factum of entry in the electoral roll of any constituency a decisive role to
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 675
play for finding out whether he is or is not entitled to vote in that constituency. A
The other part of Section 62 consists of sub-sections (2) to (5). In spite of a
person having been entered into an electoral roll and by virtue of such entry
having been conferred with a right to vote, such right may yet be defeated by
existence of any of the disqualifications or ineligibilities enacted by sub-
sections (2) to (5).
B
The Representation of the People Act, 1950 was enacted to provide for,
inter alia, the qualifications of voters at election to the House of the People and
the Legislatures of States, the preparation of electoral rolls, and matters con-
nected therewith - the subjects which have been left untouched by the latter Act
of 195 l. Electoral rolls for Council constituencies are prepared under part IV c
of the 1950 Act which part now consists of only one section, i.e., Section 27,
the relevant part whereof reads as under:-

2 7. Preparation of electoral roll for Council constituencies. - ( l) In this
section, "local authorities' constituency", "graduates' constituency"
and "teachers' constituency" mean a constituency for the purpose of D
elections to a Legislative Council under sub-clause (a), sub-clause (b)
and sub-clause (c), respectively, of clause (3) of article 171.

(2) xxxx xxxx xxxx xx xx

xx xx xx xx xx xx xx xx E

(3) For the purpose of elections to the Legislative Council of a State
in the graduates' constituencies and the teachers' constituencies, the
State Government concerned may, with the concurrence of the Elec-
tion Commission, by notification in the Official Gazette, specify - F

(a) the qualifications which shall be deemed to be equivalent to
that of a graduate of a university in the territory of India, and

(b) the educational institutions within the State not lower in
standard than that of a secondary school. G

(4) The provisions of sections 15,16,18,21,22 and 23 shall apply in
relation to graduates' constituencies and teachers' constituencies as
they apply in relation to assembly constituencies.

(5) Subject to the foregoing provisions of this section- H
676 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A (a) every person who is ordinarily resident in a graduates' con-
stituency and has, for at least three years before the qualifying date
been either a graduate of a university in the territory of India or in
possession of any of the qualificatio,ns specified under clause (a) of
sub-section (3) by the State Government concerned, shall be entitled
to be registered in the electoral roll for that constituency; and
B
(b) every person who is ordinarily resident in a teachers' constitu-
ency. and has, within the six years immediately before the qualifying
date for a total period of at least three years, been engaged in teaching
in any of the educational institutions specified under clause (b) of sub-
c section (3) by the State Government concerned shall be entitled to be
registered in the electoral roll for that constituency.

(6) For the purpose of sub-sections (4) and (5) the qualifying date shall
be the 1st day of November of tbe year in which the preparation or
revision of the electoral roll is commenced.
D
Sub-section (4) above-said refers to a few sections placed in part III
entitled "Electoral Rolls for Assembly Constituencies" and makes them appli-
cable to teachers' constituencies also. Sections 16 and 19 provide as under:-

16. Disqualific:ationsfor registration in an electoral roll. - ( 1) A person
E shall be disqualified for registration in an electoral roll if he -

(a) is not a citizen of India; or

(b) is of unsound of mind and stands so declared by a competent
court; or
F (c) is for the time being disqualified from voting under the
provisions of any law relating to corrupt practices and other offences
in connection with elections.

(2) The name of any person who becomes so disqualified after regis-
tration shall forthwith be struck off the electoral roll in which it is
G
included :

[Provided that the name of any person struck off the electoral roll of
a constituency by reason of a disqualification under clause (c) of sub-
section (10) shall forthwith be reinstated in that roll if such disquali-
H fication is, during the period such roll is in force, removed under any
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 677
law authorising such removal.] A
19. Conditions of registration. - ·Subject to the foregoing provi-
sions of this Part, every person who -

(a) is not less than eighteen years of age on the qualifying date,
and B
(b) is ordinarily resident in a constituency.

Shall be entitled to be registered in the electoral roll for that
constituency.

Section 15 provides for an electoral roll being prepared for every con-
c
stituency. Section 18 restrains any person being registered in more than one
electoral roll. Section 21 prescribes the manner for preparation and revision of
electoral rolls. Correction of entries in electoral rolls is provided for by Section
22. Section 23 prescribes for inclusion of names in electoral rolls as also for
transposition of names from one electoral roll to another one. D

A perusal of the above-said provisions leads to certain irresistible infer-
ences. Article 326 of the Constitution having recognised the. doctrine of adult
suffrage has laid down constitutional parameters determinative of the qualifi-
cations and disqualifications relating to registration as a voter at any election.
The two Articles, i.e., Article 326 and Article 327 contemplate such qualifi-
E
cations and disqualifications being provided for, amongst other things, by the
appropriate Legislature. The fountain source of the 1950 Act and 1951 Act
enacting provisions on such subject are the said two Articles of the Constitu-
tion. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951
Act read in juxtaposition go to show that while Section 16 of the 1950 Act F
provides for 'disqualifications for registration' in an electoral roll, (qualifica-
tions having been prescribed by Section 27 thereof), Section 62 of the 1951
Act speaks of 'right to vote' which right is to be determined by reference to
the electoral roll of the constituency prepared under the 1950 Act. The eligi-
bility for registration of those enrolled having been tested by reference to
G
Section 16 or Section 27 of the Act, as the case may be, and the electoral roll
having been prepared, under the 1950 Act if a person is or becomes subject
to any of the disqualifications provided in clauses (a) (b) (c) of sub-section (1)
of Section 16, two consequences may follow. His name may forthwith be struck
off the electoral roll, in which the name is included, under sub-section (2) of
Section 16 of the 1950 Act. Even if the name is not so struck off yet the person H
678 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A is disqualified from exercising right to vote at the election by virtue of sub-
section (2) of Section 62 of the 1951 Act. The qualifications prescribed for
enrolment in the electoral roll as provided by clause (b) of sub-section (5) of
Section 27 of the 1950 Act are : (i) ordinary residence in a teachers' constitu-
ency, (ii) being engaged in the relevant educational institution for a total period
of at least three years within the six years immediately before the qualifying
B
date. The enquiry into availability of these eligibility qualifications, under the
scheme of the 1950 Act is to be made at the time of preparation of the electoral
roll or while entering or striking out a name in or from the electoral roll. Section
62 of the 1951 Act does not provide that a person who is not qualified to be
enrolled as an elector in the electoral roll shall not be entitled to vote at the
C election. To put it briefly a disqualification under Section 16 of the 1950 Act
has a relevance for and a bearing on the right to vote under Section 62 of the
1951 Act but being not qualified for enrolment in the electoral roll under
Section 27 of the 1950 Act has no relevance for or bearing on the right to vote
at an election under Section 62 of the 1951 Act. That is the distinction between
D a "disqualification" and "not being qualified".

It will be appropriate to take stock of the available judicial opinion on
the issue at hand. We will straightaway proceed to refer to a Constitution Bench
decision in Hariprasad Mulshanker Trivedi v. V.B. Raju and Ors., [1974] I
SCR 548. All the decided cases of this Court available till then were noticed
E by the Constitution Bench. The dispute arose out of an election to elect four
members of the Council of States from the State of Gujarat held in April 1972.
The main ground urged in the election petition for declaring the election of the
respondents 4 and 5 in the election petition void was that they were not
ordinary residents in the area covered by any Parliamentary constituency in the
State of Gujarat and that their names had been illegally entered in the electoral
F
roll of the respective constituency in Gujarat and as such they were not 'elec-
tors' within the meaning of Section 2 (l)(e) of the 1951 Act and consequently
were also not eligible to be candidates in the election. The Constitution Bench
held that the question whether a person suffers from any of the disqualifications
specified in Section 16 of the 1951 Act can always be gone into by the Court
G trying an election petition and the electoral roll was not conclusive or final in
respect of these matters but the ground taken in the election petition to declare
the election of the respondents 4 and 5 void was not that they suffered from
any of the disqualifications mentioned in Section 16; the ground taken was that
since the elected respondents were not ordinarily resident in any of the Parlia-
H mentary constituencies of Gujarat, they had not fulfilled one of the conditions
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 679
necessary to be satisfied for registration in the electoral roll. In other words, A
the ground taken was not a 'disqualification' but 'not being qualified' to be
enrolled as an elector. The Constitution Bench also drew a distinction between
lack of jurisdiction or power and erroneous exercise thereof, placing on record
the difficulty in formulating an exhaustive rule to tell when there is lack of
power and when th~re is an erroneous exercise of it. The Constitution Bench
B
concluded that a wrong decision on a question of ordinary residence for the
purpose of entering a person's name in the electoral roll cannot be treated as
a jurisdictional error which can be judicially reviewed either in a Civil Court
or before an Election Tribunal. The Constitution Bench also held that the 1950
Act is a complete code in the manner of preparation and maintenance of
electoral rolls. The relief of enrolment, or striking out the name of a person c
enrolled therein on the ground of his lacking in qualifications conferring a right
to be enrolled, must be adjudicated in the manner prescribed by the 1950 Act
invoking the jurisdiction of the authorities contemplated therein. The Consti-
tution Bench held that non-compliance with the provisions of Section 19 of the
1951 Act (which in the case at hand is pari materia with Section 27 (5)(b) of D
the 1950 Act) cannot furnish a ground for declaring an election void.

In Nripendra Bahadur Singh v. Jai Ram Verma and Ors., AIR (1977)
SC 1992 the election of the returned candidate was challenged and sought to
be set aside on the ground of inclusion of certain electors in the electoral rolls
though they had ceased to be qualified from being so enrolled and as such were E
not entitled to vote notwithstanding the presence of their names in the electoral
rolls and that their participation in the election had materially affected the
result. This Court, following the Constitution Bench decision in Hariprasad
Trivedi 's case (supra), held :

"The finality of the electoral roll cannot be challenged in an F
election petition even if certain irregularities had taken place in the
preparation of the electoral roll or if subsequent disqualification had
taken place and the electoral roll had on that score not been corrected
before the last hour of making nominations. After that dead line the
electoral roll of a constituency cannot be interfered with and no one G
can go behind the entries except for the purpose of considering dis-
qualification under Section 16 of the 1950 Act. In the case in question
the persons whose names were recorded in the electoral roll and
participated in the voting were not disqualified under Section 16 of the
1950 Act. That being the position it would have been wrong on the part
<!f the Presiding Officer not to allow the voters whose names were H
680 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.

A recorded in the electnral roll of the constituenly to participate in the
voting, even though their names could have been earlier at the appro-
priate time legitimately excluded.from the electoral roll. These voters
~·
are electors within the meaning of Section 2 (I) (e) of the 1951 Act
and were entitled to vote under Section 62 of the 1951 Act.

B In a democracy and for that matter in an election, perennial
vigilance should be the watch-word for all. If, therefore, notwithstand-
ing the provisions of the law, appropriate action was not taken at the
appropriate time, the provisions of the election law which have got to
be construed strictly, must work with indifference to consequences,
c immediate or mediate."

[emphasis supplied]

The Court in Nripendra Bahadur's case also noticed the provisions of
sub-section (3) of Section 23 of the 1950 Act which is applicable to electoral
D rolls in relation to teachers' constituencies and provides that no amendment,
transposition or deletion of any entry shall be made under Section 22 and no
direction for the inclusion of a name in the electoral roll of a constituency shall
be given under Section 23 after the last date for making nominations for an
election in that constituency or in the Parliamentary constituency within which
E that constituency is comprised and before the completion of that election.
During the course of its judgment this Court has also observed that mere
remissness of the officers in performing their duty in preparation of the elec-
toral rolls is not relevant for the purpose of determining the legality of an
election in the entire scheme of the Act and the object and purpose of prepa-
ration of electoral rolls under the 1950 Act.
F
A plea for avoiding an election on a ground akin .to the one raised in the
case before us came up for the consideration of a Constitution Bench of this
Court in Laxmi Charan Sen and Ors. v. A.K.M. Hassan Uzzaman and Ors.,
[1985] 4 SCC 689. It was held:-
G
"Notwithstanding the fact that the roll contains these errors and
they have remained to be corrected, or that the appeals in respect
thereof are still pending, the Registration Officer is under an obligation
to publish the roll by virtue of Ruic 22."

H " ........ that the fact that certain claims and objections are not finally
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 681
disposed of, even assuming that they are filed in accordance with law, A
cannot arrest the process of election to the Legislature. The election
has to be held on the basis of the electoral roll which is in force on the
last date for making nominations."

During the course of its judgment the Constitution Bench has observed
that election laws abhor a vacuum; the electoral rolls may contain errors and B
they may remain to be corrected or the appeals in respect thereof may be
pending, the electoral roll effective for the ensuing election must achieve a
finality at a given point of time (such as the last date prescribed for filing the
nominations). It has to be remembered that right to contest an election, a
right to vote and a right to object to an ineligible person exercising right to
vote are all rights and obligations created by Statute. They are not the rights
c
in common law. Bringing into existence, Houses or Institutions responsible for
functioning of a democracy have a vital constitutional objective to achieve as
they are so essential for the functioning of a democracy. A breach of any
statutory right or obligation should not come in the way of the process directed
towards fulfilling the high objective of bringing into existence of a House or D
Institution contemplated by Constitution as enabling democratic functioning of
the country.

Two Full Bench decisions of two High Courts have come to our notice.
In Ghu/am Mohiuddin v. Election Tribunal.for Town Area Sak/I and Am:, AIR
(1959) Allahabad 357, Raghubar Dayal, J. (as His Lordship then was) ex- E
pressed the majority opinion by holding that a person's non-residence for the
prescribed period or not attaining the age of 21 years is not his disqualification
for registration but amcunts to his being not qualified to be registered; so long
as one is not qualified no question of disqualification arises. A vote is not
unlawful merely on account of the fact that the person had no right to have his F
name entered in the electoral roll. M.L. Chaturvedi, J. agreeing with Raghubar
Dayal, J. held that the electoral roll is to be deemed final and conclusive as far
•
as the fulfilment of qualification of a voter is concerned but it is not to be
deemed final and conclusive by the Election Tribunal so far as the disqualifi-
cations attaching to such persons are concerned. Chaturvedi, J. noticed the
well-settled practice in England having been adopted in the Representation of
G
the People Act and held that an entry in the electoral roll has to be taken to
be conclusi•·e proof of the fact :hat the person fulfils the requisitive conditions
as to age and residence in the Constituency; finality has been given to the
decision of the officer preparing the roll insofar as the fulfilment of conditions
of registration is concerned but it has not been considered desirable to extend H
682 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A the same finality to the decision on the subject of disqualification as the latter
is a more serious matter.

The Full Bench decision of Allahabad High Court has been followed by
the Punjab & Hary:rna High Court in Roop Lal Mehta v. Dhan Singh, (1967)
69 Pun LR 618. The question arising for decision was whether an election
B petition can be filed on the ground of the voter below the age of 21 years having
been allowed to cast vote at the election by virtue of his being enrolled as an
elector in the electoral list. The Full Bench held that after the electoral rolls
have been finalised the voting of a person whose name is on the electoral roll
cannot be challenged as being void on the ground that he was under 21 years
c of age on the qualifying date and resort cannot be had to Section 100 (l)(d)(iv)
of the 1951 Act to enable the dispute as to age being tried as an issue by an
Election Tribunal in an election petition.

We find ourselves in agreement with the law so stated by the two Full
Benches in Ghulam Mohiuddin (supra) and Roop Lal Mehta (supra) and record
D our approval of the same.

One of the principles underlying the plenary bar on judicial proceedings
in election matters created by Article 329(b) is the pre-emptory urgency of
prompt engineering of the whole election process without intermediate inter-
ruptions by way of legal proceedings challenging the steps and stages in
E between the commencement and the conclusion. (See Mohinder Singh Gill,
AIR 1978 SC 851, Para 30). The same principle underlies sub-section (3) of
Section 23 of 1950 Act. The last date for making nomination for elections in
a constituency and the date of declaration of result are the terminus a quo and
terminus ad quem between which the electoral rolls must remain untouched.
F Amendment (which will include inclusion), transposition or deletion of entries
in electoral rolls are all taboos in this interregnum.

It is true that the Assistant Electoral Registration Officer-cum- District
Magistrate, Patna was not justified in sitting over the objections laying serious
challenge to· the legality of enrolment of a large number of voters in the
G electoral roll. Such objections should have been promptly dealt with and
disposed of. Withholding of dealing with the objections on the ground that the
officer did not have time enough available at his disposal was hardly any
justification for the inaction on the part of the officer. The failure on the part
of the officer to dispose of the objections 11as laid to an allegation being made
H in the election petition t\1at the officer was obliging the ruling party in the State
S.P. SINGH v. N.K. YADAV [R.C. LAHOTI, J.] 683
of Bihar as it stood to gain by inclusion of the names of ineligible voters in A
the electoral roll. Such delay in disposal of the objections has to be deprecated.
Preparation and maintenance of electoral rolls is an ongoing process. A mean-
ingful democracy means participation of all eligible citizens in the exercise of
right to vote and exclusion of ineligible voters therefrom. Such goal achieved,
the result of election would reflect the will of the people. Watcliful and alert
B
citizenry assisted by responsible and responsive bureaucracy entrusted with the
task as to electoral rolls is needed to reach the said goal. The need to hear and
decide claims for inclusion in or exclusion from electoral rolls promptly and
objectively hardly needs to be emphasised. However, we have already held this
could not have been a ground for avoiding the election and we leave the matter
at that. c
To sum up we are of the opinion that inclusion of person or persons in
the electoral roll by an authority empowered in law to prepare the electoral rolls
though they were not qualified to be so enrolled cannot be a ground for setting
aside an election of a returned candidate under sub-clause (iii) or (iv) of clause
(d) of sub-section ( l) of Section l 00 of the Representation of the People Act, D
1951. A person enrolled in the electoral list by an authority empowered by law
to prepare an electoral roll or to include a name therein is entitled to cast a vote
unless disqualified under sub-sections (2) to (5) of Section 62 of the Represen-
tation of the People Act, 1951. A person enrolled in the electoral roll cannot
be excluded from exercising his right to cast vote on the ground that he did E
not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of
the Representation of the People Act, 1950.

The view taken by the learned Designated Election Judge in the judg-
ment under appeal cannot be found fault with. The appeal is held liable to be
dismissed and is dismissed accordingly. The respondent has chosen not to F
appear. Hence no order as to the costs.

S.M. Appeal dismissed.