Delhi High Court
Sh. Bheeshma Sharma vs Sh. Sahab Singh Chauhan & Ors. on 16 March, 2010
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA.No.1624/2009 in Election Petition No.10/2009
% Date of decision: 16th March, 2010
SH. BHEESHMA SHARMA ..... PETITIONER
Through: Mr. Harish Malhotra, Sr. Advocate with
Mr. Vikas Arora & Mr. Ajay Marwah,
Advocates
Versus
SH. SAHAB SINGH CHAUHAN & ORS. ..... RESPONDENTS
Through: Mr. Alok Kumar & Mr. U.S. Chaudhary,
Advocates for Respondent No.1
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner has filed this election petition under Section 81, 82, 84, 100 & 101 of the Representation of People's Act, 1951 for setting aside of the election held on 29th November, 2008 for the post of Member of Legislative Assembly of Delhi from Assembly Constituency No.66, Ghonda, Delhi. As per the results of the said election declared on 8th December, 2008, a total of 91596 votes were cast with the respondent no.1 securing 35226 votes and the petitioner securing 34646 votes and the Election Petition No.10/2009 Page 1 of 20 balance 21724 votes were secured by the respondent no.2. The margin by which the respondent no.1 won over the petitioner was thus of 580 votes.
2. Though the petition has been filed on several grounds but one of the grounds is of improper rejection of valid votes which under Section 100 of the Act is a ground for setting aside of the election. It is inter alia the plea of the petitioner that as per the copies of Form 17C under the Conduct of Election Rules 1961 supplied to the polling agent of the petitioner in terms of Rule 49(S), a total of 94222 votes were cast; the same figure was also published in the newspapers on 1st December, 2008. It is thus the case of the petitioner that the numbers of votes counted are short by 2626 votes which have been improperly rejected. It is thus the case of the petitioner that if all the 94222 votes polled had been counted, the respondent no.1 could not have won, the margin of his win being of 580 votes only. The petitioner has also pleaded differences in total votes polled as given in Form 17C and as in the final result with respect to at least 5 polling stations. It is stated that while the number of votes polled at polling station no.8 were stated in copy of Form 17C supplied to the polling agent of the petitioner as 398, in the final result-sheet, the number of votes polled at the same polling station is shown as 598. Similar such differences have been pleaded with respect to polling station Nos. 39, 41,155 & 157 also. It is the plea of the petitioner that such differences in the votes polled are Election Petition No.10/2009 Page 2 of 20 unexplained. A variation of 280 votes is pleaded in the aforesaid five polling stations only.
3. The petitioner alongwith the election petition has filed an application being I.A. No.1624/2009 for ad-interim order for preserving of the polling machines and recounting of the total votes polled.
4. The elections at all the polling stations were through Electronic Voting Machines (EVMs).
5. This Court vide ex parte order dated 4th February, 2009 while issuing notice of the election petition, on the aforesaid application of the petitioner, directed preservation of the polling machines with respect to the polls for the said constituency. Subsequently, on application being IA No.5117/2009 of the Election Commission of India, in view of the requirement of the EVMs for the then ensuing parliamentary elections, it was directed that only the control units of the EVMs be preserved and the balloting units of the EVMs were permitted to be used for the parliamentary elections. The said order continues to be in force.
6. The counsels for the petitioner and the respondent no.1 have been heard on the application of the petitioner for interim order for recounting. Though the respondent no.1 has also filed an application under Order 7 Election Petition No.10/2009 Page 3 of 20 Rule 11 of the CPC but the counsel for the respondent no.1 stated that rejection of the election petition on grounds other than aforesaid has been sought in the said application and the grounds taken in the said application for rejection of the election petition so far as recounting is concerned have been urged by the counsel for the respondent no.1 in opposition to this application. The senior counsel for the petitioner on instructions also stated that if this application for recounting is allowed, the petitioner will base his case only on the ground of recount and will not press other grounds on which election is challenged.
7. I may mention that the petitioner has claimed recounting also for the reason of the respondent no.1, in the final result having been shown to have secured more votes than the petitioner in certain areas of the assembly constituency and which it is pleaded he could not have secured because of communal reasons. The said ground urged by the petitioner for recounting was rejected at the time of hearing only and is not being considered for the present purpose also and in any case being incapable of adjudication without trial.
8. The senior counsel for the petitioner invited attention to Gursewak Singh Vs. Avtar Singh AIR 2006 SC 1791 in turn relying on Chandrika Prasad Yadav Vs. State of Bihar (2004) 6 SCC 331 for the proposition that an order of recounting can be passed when a prima face case based on Election Petition No.10/2009 Page 4 of 20 pleading of material facts stating irregularities in counting of votes is found but a roving and fishing inquiry cannot be made while directing recounting of votes. Attention is also invited to Sadhu Singh Vs. Darshan Singh (2006) 6 SCC 255 to the same effect and also laying down that the secrecy of ballot papers should be maintained. He also urges that Forms 17C filed by the petitioner alongwith the petition, as required by law bear the signatures of all the parties and/or their polling agents and contends that if the number of votes polled had been less as made out in the final result, they could not have been shown as more. On enquiry whether there is any restriction in ordering recounting, the senior counsel for the petitioner contends that the Court would be entitled to deny recounting if such recounting would be immaterial considering the margin of victory. It is contended that in the present case, it is not so and the difference of 2626 votes can have a vital bearing on the result of the election which declares the respondent no.1 as successful by a margin of 580 votes only. He contends that the said 2626 votes have not been counted and if counted can sway the result of the election. He further states that if recounting is allowed, no trial would be necessary.
9. The respondent no.1 has vehemently opposed the application for recounting or for the same being considered before trial. The counsel has drawn attention to Rule 63 providing for recounting of votes. Thereunder a candidate or his election agent is entitled to apply in writing to the Election Petition No.10/2009 Page 5 of 20 Returning Officer for recounting of the votes after announcement has been made of the total number of votes polled by each candidate. Under Sub- Rule (3), on said application being made, the Returning Officer is to decide the matter and is entitled to either allow the application in whole or in part or reject it in toto if it appears to be frivolous or unreasonable. It is contended that the petitioner did not make any such application for recounting. I have enquired from the counsel whether non filing of such an application can debar the petitioner from claiming the relief of recounting in this petition. The counsel has not been able to cite any law or precedent to the said effect. I however find that though in Smt. Ram Rati Vs. Saroj Devi AIR 1997 SC 3072 a two Judge Bench of the Supreme Court had held that it is incumbent upon a candidate to make an application for recounting to the Returning Officer and if it is not done then the Court is not empowered to direct recounting, but subsequently a three Judge Bench of the Supreme Court in Sohan Lal Vs. Babu Gandhi AIR 2003 SC 320 disagreed with the said view and held that there is no prohibition against the Court directing a recounting of the votes in the absence of the candidate having not made an application for recounting before the Returning Officer. It was held that a party may not know that the recounting is necessary till after the result is declared and at that stage, it would not be possible for him to apply for recounting to the Returning Officer and his only remedy would be to file an Election Petition and the Court in such a petition is bound to consider the plea and where a case is made out, direct Election Petition No.10/2009 Page 6 of 20 recounting depending upon the material before it. Thus there is no merit in the said contention of the counsel for the respondent no.1.
10. The counsel for the respondent no.1 next contended that the only grounds for declaring the election bad are provided in Section 100 of the Act and none of the said grounds are made out in the present case. It is urged that refusal or rejection of any vote within the meaning of Section 100(1)(d)(iii) can only mean not allowing to vote and no such case is made out in the present case. I am however not convinced with the said argument also of the counsel for the respondent no.1. If it is found that some of the votes though polled have not been counted it would fall within the meaning of improper rejection or reception of a vote within the meaning of Section 100(1)(d)(iii) (supra). I am also of the view that the same would also fall within the meaning of non compliance with the provisions of the Act and the Rules under Section 100(1)(d)(iv). Under the Act and the Rules, all the valid votes polled have to be counted and non counting of any votes polled would be a non compliance with provisions of Act and the Rules within the meaning of Section 100(1)(d)(iv) also. Even otherwise, I am unable to fathom that if such a mistake has in fact occurred, there is no redressal therefor and/or that anyone can be permitted to take advantage of such a situation if has occurred. Upon this view being expressed, the counsel drew attention to Jyoti Basu Vs. Debi Ghosal AIR 1982 SC 983 to contend that a right to be elected is, anomalously enough, neither a fundamental Election Petition No.10/2009 Page 7 of 20 right nor a Common Law Right and is a pure and simple statutory right; so is the right to dispute an election; outside of statute, there is no right to be elected and no right to dispute an election. That case related to impleadment of persons alleged to be guilty of corrupt practices in an election but otherwise not party to the election, as parties in the election petition. I find it a little difficult to digest that even if the court is satisfied of a defect in counting, the same cannot form a ground of ordering recount or cannot be treated as a ground for setting aside of election. Be that as it may, the grounds mentioned in Section 100 are found to be very wide and / or are required to be interpreted widely to prevent a potential mischief from being perpetuated.
11. The counsel for the respondent No.1 next contended that mere improper rejection or refusal of any vote is not a ground under Section 100 (1)(d)(iii); such improper rejection has to materially affect the result of the election in so far as it concerns a returned candidate. The contention is that such mistake even if any in not counting 2626 votes can form a ground within the meaning of Section 100(1)(d)(iii) only upon it being shown by leading evidence that if the said 2626 votes had been counted, they would have been procured by the petitioner resulting in the respondent no.1 losing the election. It is further urged that the onus of proving the same is on the petitioner and which onus can be discharged only after the evidence has Election Petition No.10/2009 Page 8 of 20 been led. It is thus urged that the Court without finding a ground within the meaning of Section 100 (1)(d)(iii) cannot order recounting.
12. I have enquired from the counsel for the respondent no.1, as to what possible evidence can the petitioner lead to show that the uncounted votes if any would have been secured by the petitioner so as to raise the petitioner's tally of vote above that of the respondent no.1. The counsel for the respondent no.1 fairly conceded that no such evidence can be lead by the petitioner. I then enquired from the counsel, if no such evidence could be led, why should the recounting, if otherwise the Court is satisfied is called for, be postponed till the post evidence stage. The counsel in response draws attention to Vashist Narain Sharma Vs. Dev Chandra AIR 1954 SC 513 where the Supreme Court in relation to an election dispute held that even if the result of it being impossible for the petitioner to adduce evidence of a ground under Section 100 being made out is harsh to the petitioner seeking to set aside the election, the Court is not concerned with the inconvenience resulting from the operation of the law and it is for the legislature to re-consider the matter. Even though I am humbly of the opinion that jurisprudentially the Supreme Court has progressed much since 1954 but it is not within my competence to comment on the matter inasmuch as I am bound by the said law. I may however notice that Vashist Narain Sharma (supra) has been overruled on another aspect in Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsingji AIR 1965 SC Election Petition No.10/2009 Page 9 of 20
669. I also notice that in V.S. Achuthanandan Vs. P.J. Francis (1999) 3 SCC 737 the Supreme Court had held that free, fair, fearless and impartial elections are the guarantee of a democratic policy - Effective mechanism is the basic requirement for having such election - For conducting, holding and completing the democratic process, a potential law based upon requirements of the society tested on the touchstone of the experience of times is concededly of paramount importance. It was further held that a balanced judicial approach in implementing the law relating to franchise is the mandate of the court. The law relating to accomplishment of democratic process by holding the elections is not required to be so liberally construed as to frustrate the will of the people expressed at the election and not too rigidly applied which may result in shaking the confidence of the common man in the institution entrusted with the noble task of establishment of the rule of law.
13. This Court is of the firm view that the non-counting if any of 2626 votes materially affects the result of the election in so far as it concerns the returned candidate i.e. the respondent no.1. I am unable to comprehend as to how the respondent No.1 can be said to remain unaffected if in fact 2626 votes have remained to be counted.
14. The counsel for the respondent no.1 next contends that no case of non counting of any votes is made out. It is argued that the number of votes Election Petition No.10/2009 Page 10 of 20 polled published in the newspaper on 1st December, 2008 are provisional / tentative as mentioned therein also as the final tally is taken only subsequently at the time of counting. It is argued that merely because there is variation in the number of votes is not a reason enough for ordering recount. The counsel has sought to explain the manner of preparation of Form 17C to contend that there can be possibility of an error therein and contends that there can be no error in the counting done from the machines before declaration of result of elections. He further contends that it is in fact the petitioner who has fudged and fabricated the forms 17C before this Court (in this respect an application under Section 340 Cr.P.C. has also been filed). The respondent no.1 has also filed before this Court certified copies of forms 17C obtained from the Returning Officer to show the difference with the forms 17C filed by the petitioner. The counsel for the respondent No.1 also relies on principle of presumption of truthfulness of the election process. The senior counsel for the petitioner however contends that the respondent No.2 has shied from filing his own copies of forms 17C which are given contemporaneously at the close of election to each of the candidates or their polling agents. He urges that the copies of forms 17C given to the respondent no.1 would be the same as to the petitioner and controverts the certified copies of forms 17C obtained from the office of the Returning Officer; various lacunas are pointed out therein, of the same being incomplete and not bearing the signatures of all the three candidates / their poling agents. The senior counsel for the petitioner Election Petition No.10/2009 Page 11 of 20 contends that the total of the votes polled as per the certified copies of forms 17C filed by the respondent no.1 also does not match with form 20 i.e. the result of the election showing the total number of votes polled.
15. The counsel for the respondent no.1 also relies upon Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao AIR 2010 SC 24 reiterating the salutary principle of election law that since an order for inspection and recount of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course; that before an order of recount and scrutiny of ballot papers can be made, the election petition must be found to contain material facts of allegations of irregularity or illegality by not counting and on the basis of evidence adduced in support of allegations, the Court must be prima facie satisfied that in order to decide the dispute and to do complete and factual justice between the parties making such an order is imperatively necessary. The Supreme Court also relied on Suresh Prasad Yadav Vs. Jai Prakash Mishra AIR 1975 SC 376 laying down that an order for recount cannot be made as a matter of course for two reasons firstly because it affects the secrecy of ballot which under the law is not to be lightly disturbed and secondly because the rules provide an elaborate procedure for counting and the said procedure contained many statutory checks and safeguards against mistake and fraud in counting and can be called almost trickery foolproof. It is also argued that in this case though recount was ordered and showed a different Election Petition No.10/2009 Page 12 of 20 result still the Supreme Court by holding that no case for recount was made out set aside the order directing recount.
16. The counsel for the respondent no.1 has also handed over copies of the following judgments:-
(i) Samant N. Balakrishna Vs. George Fernandez AIR 1969 SC 1201 on the proposition of the burden of proof being on the petitioner.
(ii) Peoples Union for Civil Liberties Vs. Union of India AIR 2003 SC 2363.
(iii) Sh. Satyanarain Dudhani Vs. Uday Kumar Singh AIR 1993 SC 367 where finding the application for recount to be cryptic, containing no details and no instance of irregularity or illegality and finding no contemporaneous evidence to that effect, it was held that recounting cannot be ordered. The reason which again prevailed was the need to maintain the secrecy of ballot.
(iv) D.P. Sharma Vs. The Commissioner AIR 1984 SC 654 where the clerical or arithmetical mistakes were held to not constitute a ground for recounting.
Election Petition No.10/2009 Page 13 of 20
(v) Mahendra Pal Vs. Sh. Ram Dass Malanger AIR 2002 SC 1291 again laying down that discrepancy in number of votes found and number of ballot papers issued could be attributed to accidental slip or clerical or arithmetical mistake and was held not to constitute a ground for recount.
17. It was enquired from the counsel for the respondent whether the argument of the need to maintain the secrecy of ballot survives on ballot papers having been substituted by EVMs. Though the counsel during the hearing was not able to reply to the same but after the conclusion of hearing along with "Supplementary arguments" filed copy of the judgment dated 4th November, 2009 of this Court in Writ Petition (Civil) No.4715/2008 titled Election Commission of India Vs. Central Information Commission. A Single Judge of this Court in the said judgment though relating to the scope of RTI provisions vis-à-vis the Representation of Peoples' Act has held that the argument of secrecy of ballot will equally apply to the data and information stored in the control unit of the EVMs in electronic form and principle of secrecy and confidentiality in both cases are identical.
18. I have perused Chapter-II of the Rules relating to voting by EVMs as well as Rule 66A laying down Rules 55C, 56C & 57C in lieu of Rules 55, 56 & 57 in relation to counting of votes, where voting machines have been used. I am unable to find as to how the secrecy of ballot would Election Petition No.10/2009 Page 14 of 20 be affected if recount is ordered in the present case. The said principle emanated where owing to the nature of the ground urged for setting aside of the election such secrecy of ballot would necessarily be affected in the endeavour to prove the same. However, the present is a case where there is admittedly a difference between the total numbers of votes polled as noted in Form 17C at the close of the poll as ultimately found on count. Considering the margin of votes by which the respondent no.1 has been declared successful and the discrepancy in the number of votes, the same can materially affect the result of the election so far as it concerns the returned candidate i.e. the respondent no.1. The recount of votes only requires the proper button marked "result" in the control units of each of the EVMs involved in the election, and which has been directed to be persevered, to be pressed and which would give the total votes polled and polled by each candidate at each polling station and a re-total of the result of each of the EVMs. No enquiry as to which voter had voted for which candidate would be required in such a case.
19. The introduction of EVMs in the election process is a giant step made possible with advancement in technology. While earlier, a recount entailed physical verification of ballot polled, necessarily affecting secrecy of ballot, besides lengthy time consuming process and possibility of human error again, with the introduction of EVMs, recounting only entails pressing the "Result" button of each EVM and totaling the results of each Election Petition No.10/2009 Page 15 of 20 EVM. The secrecy of the ballot is not affected in any manner. If inspite of such possibilities and convenience, we allow ourselves to be still guided by considerations which are now outdated and archaic, we will be doing a disservice to advancement in technology incorporated in the statute and failing to benefit from the same. I am also of the view that if such discrepancies in total number of votes polled, noted in Form 17C and in Form 20 (at the time of final count) are allowed to remain, it will vitiate the very purpose of Form 17C. The purpose of Form 17C is to cap the total number of votes polled at the close of the poll and to eliminate the possibility of addition or reduction in the interregnum till the counting. The scheme of election does not permit of any discrepancy between the two stages. Form 17C is prepared and signed in the presence of all candidates/their agents and binds not only them but also the electoral process. The only mistake admissible can be in totaling of Form 17C of constituencies. However, there can be no variation in votes polled in any constituency as per its Form 17C and Form 20. The Karnataka High Court in S. Prasanna Kumar Vs. Dr. Y. Nagappa MANU/KA/2173/2007 has directed recount in such contingency.
20. As far as the argument of the counsel for the respondent no.1 with respect to presumption of truthfulness is concerned, I am of the opinion that with the introduction of EVMs, the dispute as in the present case ought not to have occurred. With the use of the EVMs, the total number of votes Election Petition No.10/2009 Page 16 of 20 polled at each polling station declared at the close of the election ought not to and cannot be provisional or tentative. There is after all no manual counting of the votes involving possibility of a clerical or calculation error. The total number of votes pulled is available on each machine, immediately at the close of the poll. Form 17C itself has in column 5 thereof "Total number of votes recorded as per voting machine". There can be no discrepancy/error about the same and such number will remain the same at the time of counting also. The very fact that such error / discrepancy exists and it has the potential of affecting the result of the election, considering the margin of votes by which the respondent no.1 has emerged successful calls for a recount. It is also not as if recount would entail a long drawn process. If inspite of EVMs, the Courts remain reluctant to give full effect to the same, the Courts would be turning a blind eye to technology. The Supreme Court in The State of Maharashtra Vs. Dr. Praful B. Desai AIR 2003 SC 2053 on the principle of interpretation of an ongoing statute (in that case Cr.P.C.) relied on the commentary titled "Statutory Interpretation", 2nd Edition of Francis Bennion laying down:
"It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.
In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, Election Petition No.10/2009 Page 17 of 20 the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters. .....That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.
An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."
21. Similarly in Suresh Jindal Vs. BSES Rajdhani Power Limited AIR 2008 SC 281, it was held that creative interpretation of the provisions of the statute demands that with the advance in science and technology, the Court should read the provisions of a statute in such a manner so as to give effect thereto.
22. I, therefore, find that with the introduction of EVMs, this Court cannot remain shackled by the resistance to recount for the reasons which prevailed with the physical ballot papers.
23. As far as the petitioner making out a prima face case for recount is concerned, as already noticed herein above, there is admittedly a difference in the total number of votes recorded at two stages and which difference ought not to have been there with the introduction of EVMs. The total Election Petition No.10/2009 Page 18 of 20 number of votes polled as recorded in the EVM at the close of the poll should be the same as the votes counted. I find the discrepancy in the total number of votes polled sufficient for directing a recount. A prima facie case is made out and the element of irreparable injury and balance of convenience are obvious. Often the election petitions remain pending till the completion of the term of the elected candidate making the election petition a mockery. If in a given case as the present one, it is found that the dispute can be resolved with the press of a button, then the Court should not hesitate in doing so. The recent judgment of the Single Judge of this Court (supra) relating to the RTI Act does not concern recounting through EVMs and has not found the same to be affecting the principle of secrecy of ballot. The observations therein were made in the context of the RTI queries. Sir Tom Stoppard, the British playwright, in his 1972 play Jumpers says "It is not the voting that's democracy; it's the counting"!
24. In a democracy, the electoral process is supreme and sacrosanct and a statute should be interpreted so as to encourage the transparency in the electoral process and to make the candidate aware that they cannot take advantage of a mistake here and there and the results of the election can be re-checked with the press of a button. It is only when the candidates are aware of any such consequence that the possibilities of such errors would also diminish.
Election Petition No.10/2009 Page 19 of 20
25. The application is therefore allowed. The respondents 3 & 4 and the Election Commission of India are directed to recount the votes polled in the election held on 29th November, 2008 for the post of Member of Legislative Assembly of Delhi for Assembly Constituency No.66 and to file a report in this Court. The said report to also indicate the reasons for differences, if any, in the result as well as the differences in the total number of votes polled in terms of Form 17C and in the result in form 20 as earlier discussed. The report be filed within six weeks of today. Copy of this order be communicated forthwith to the Election Commission of India.
List on 7th May, 2010.
RAJIV SAHAI ENDLAW (JUDGE) March 16th 2010 gsr Election Petition No.10/2009 Page 20 of 20