1987 PLP 933 (SCMR)

Mr. Jawad S. Khawaja, Advocate, the learned counsel for the appellant, has taken before us the same ground as was taken up by him in the High Court, namely, that there should have been a positive finding that by the illegalities committed not by the candidate but by the Polling Staff, the result got materially affected and without such a finding the election could not be declared void as a whole. He has relied on the decisions in Niaz Ahmad v. Azizuddin P L D 1967 S C 466, Abdus Sattar Rana v. S.M. Zaidi P L D 1968 S C 331, Hakim Ali v . Deputy Commissioner/Election Tribunal P L D 1982 S C 172 and Pascoe v. Thomson 62, D L R

286. As none appeared for the respondent, the appeal was heard ex parte. As would appear form the finding recorded by the Election Tribunal, it is clear that it came to a positive finding that by the illegalities committed, and it noted quite a number of them, the result of the election was materially affected and on that ground declared the election as a whole to be void. If the finding of fact recorded by the Tribunal remains intact then even on the argument advanced by the learned counsel for the appellant, there would be no case for interfering with that order in exercise of the constitutional jurisdiction. However, as the judgment of the High Court proceeds only on one ground, namely, the glaring all pervasive breach of secrecy of ballot throughout the polling in that Constituency, the contentions of the learned counsel' for the appellant have to be attended to. Section 13 subsection (1) of the Ordinance provides that "save as otherwise provided in the Ordinance, election of members of all local councils shall be held on the basis of adult franchise through secret ballot". Rule 29 of the Election Rules framed under the Ordinance provides that "an election under these rules shall be decided by secret ballot" . Rule 81 of the Election Rules provides "A Returning Officer, Presiding Officer or Polling Officer, or any candidate, or polling agent attending a polling station, or any person attending the counting of votes, is guilty of an offence punishable with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both, if he fails to maintain or aid in not maintaining the secrecy of voting" . The classic case on the effects of total avoidance of legal provisions by the polling staff is that of Woodward v . Sarsons and Sadler (1875) 32 L T R

867. The general law based on common law was laid down in the following words‑‑ "We are of the opinion that the true statement is, that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal, which is asked to avoid it, is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not, in fact, had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively, according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes, or false declaration of numbers by a Returning Officer, or by other such acts or mishaps. And we think that the same result should follow, if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority may have been prevented from electing the candidate they preferred. But if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reason to believe that a majority might have been prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament. " Two facts must, however, be noted so far as that decision is concerned. The first is, that there were nine polling stations the total number of recorded voters being 4405. At the polling station No. 130 where the illegalities took place, there were 564 voters. Sarsons got 965 votes and Woodward 775 votes. At polling station No. 130, 234 ballot papers were in favour of Woodward and 60 in favour of Sarsons and all these suffered from a taint, namely, that they bore the serial number of the voters' list thereby defeating the secrecy of ballot. The second factor to be noted is that the Ballot Act which governed the case provided vitiation of the vote if it bore any mark of identification irrespective of the person making the mark of identification, What the Court observed and which is of interest and relevance to the case in hand is as follows:‑‑ "As to the second, i.e. that the election was not really conducted under the subsisting election laws at all, we think, though there was an election in the sense of there having been a selection by the will of the constituency, that the question must in like manner be, whether the departure from the prescribed method of election is so great that the tribunal is satisfied, as matter of fact, that the election was not an election under the existing law. It is not enough to say that great mistakes were made in carrying out the election under those laws; it is necessary to be able to say that, either wilfully or erroneously, the election was not carried out under those laws, but under some other method. For instance, if, during the time of the old laws, with ‑the consent of a whole constituency, a candidate had been selected by tossing up a coin, or by the result of a horse‑race, it might well have been said that the electors had exercised their free will, but it should have been held that they had exercised it under a law of their own invention, and not under the existing election laws, which prescribed an election by voting. So now, when the election is to be an election by ballot, if, either wilfully or erroneously, a whole constituency were to vote, but not by ballot at all, the election would be a free exercise of their will, but it would not be an election by ballot, and, therefore, not an election under the existing election laws. But, if in the opinion of the tribunal the election was substantially an election by ballot, then no mistake or misconduct, however great, in the use of the machinery of the Ballot Act, could justify the tribunal in declaring the election void by the common law of Parliament." The question, in the absence of a specific provision invalidating such a vote, came up for consideration in the case of Mian Jamal Shah (P L D 1965 Election Commission 89). The voter had just showed the ballot paper after putting his mark to some one else thereby violating the secrecy of the ballot and no provision of the Election Law rendered such a shown ballot paper to be invalid but its invalidity was maintained on the principle which would appear from the following observations made in the decision of the Election Commission‑‑‑ "If it were permissible all the electors could show the ballot papers before casting them in the ballot boxes. The election, under the circumstances could not be by a secret ballot and it would subvert the system of election by secret ballot which the Constitution has intended with a purpose." In the case of A. Sethurama Mudaliar A I R 1924 Mad. 764 an identical argument was advanced as has been raised in this case and it was disposed of as hereunder‑‑ "It is argued for the petitioner that the decision in Woodward v. Sarsons (1875) 10 C P D 733‑44 L J C P 293‑32 L T 867 cannot be applied to India, because under R. 17(1), the mark by which identification may be had must be placed on the voting paper by the voter himself. Apparently the first part of the Rule does not apply to marks put by the voter, but there is nothing in the latter part to show that it is the voter himself who must put the mark by which he may be identified: and in the absence of words restricting the meaning of the Rule, I see no reason why the view held in Woodward v . Sarsons with reference to similar rule should not equally apply to R. 17(1). There is no restriction in the words of the rule and, consequently, nor restriction could be read into it without adequate reason. It follows, therefore, that these votes are invalid under R. 17(1); and inasmuch as all the votes cast at the election are invalid, no proper election has been held and the petitioner has not been properly elected." The principle of secrecy of voting was considered in Lakhimpur General 1937 (Select Election Petition Cases) in the following words:‑‑ "In the petition before us it is alleged that 'the cardinal principle of the system of voting by ballot ‑ its secrecy‑‑has been violated'. Now there is no statutory principle of absolute secrecy anywhere laid down as an essential governing principle of an election. What the Legislature have done is to frame Rules, under a statutory provision giving them power to do so, in an endeavour to guarantee the utmost degree of secrecy that is humanly possible, and to borrow a phrase again from Woodward v . Sarsons 'if these requirements are substantially fulfilled, there is no enactment and no rule of law by which a ballot paper can be treated as void'. We consider this has an even stronger force when applied to the circumstances of an election in India, which is governed by a self‑contained Act, and conducted under Rules framed thereunder which have the force of law. We borrow a passage from a judgment by a tribunal sitting in Lahore in 1921: 'Indian Election Law should be regarded as a separate corpus. It seems to us that the Indian Legislature intended to make their statutory provisions complete in themselves and there is nothing whatever to indicate that there was any intention that the Indian Courts should administer English Common Law provisions. " If there is no provision in the Indian Statutory Law, then the Principles of English Common law may be invoked as representing equity, justice and good sense, upon which the law, as a whole, should be based. But in our view it is essential in the present case to see whether any specific provision of law or rule has been violated, and if so, whether this violation renders it necessary, under the same provisions, to set aside the result of an election." That the provisions with regard to secrecy of ballot are not absolute also appear from the decisions of this Court in the case of Mir Nabi Bakhsh Khan P L D 1957 S C (Pak) 301, wherein the following observations were made:‑‑ "The results were obviously intended to ensure fair and free elections and if the rule in question is to be taken as meaning absolute secrecy, that is, secrecy even from the Returning Officer, it would mean that the ballot‑boxes should be so kept as to make it impossible for the Returning Officer or any of his officers to see what is happening at the place where they are kept, with the result that a voter acting on behalf of a candidate whose chances of election are slender can put into the ballot‑box of the other candidate, who expects to sweep the polls, some deleterious substance which might destroy the ballot papers and yet nothing can be done to prevent it. It appears to me that the reasonable interpretation of the rule is that it requires secrecy consistent with the supervision which is essential in the nature of things. " In the case of Niaz Ahmad P L D 1967 S C 466 relied upon by the learned counsel for the appellant, the observations were as follows:‑‑ "The secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election. Viewed in this light, the question whether the provisions of Article 172 of the Constitution are to be regarded as mandatory or directory, would not apparently arise." In the case of Sher Bahadur v. Deputy Commissioner/ Election Tribunal 1981 S C M R 147 all the contesting candidates applied to the Presiding Officer stating that they did not want the ladies of the locality to cast their votes for them and so they should not be allowed to vote and the votes of those women who had already cast them should not be counted. The Presiding Officer agreed and the votes of ladies cast in the election were treated as spoiled ballot papers and not taken into account for deciding the result of that election. The Tribunal set aside the election on the ground that women were not allowed to vote, without recording the finding that the result of the election was affected materially thereby. It was held that "depriving a voter of his vote is both against the law and public policy" and the decision was upheld. In the case of Abdus Sattar relied upon by the learned counsel for the appellant the illegality was confined to mere seventy‑eight votes and even after excluding them the result remained the same. In the other case of Hakim Ali, irregularities were noticed and made a ground but the case was remanded as there was a misreading and further the nature and effect of these irregularities on the process of election itself was not determined. In Pascoe v. Thomson an extensive examination of the election laws had been undertaken and the following observations made: ‑‑ "The importance of observing the secrecy of the ballot is stressed, and there is a leaning against depriving a voter of the franchise to the extent that statutory directions to election officials couched in language ordinarily construed as imperative are taken as directory only when the effect would be to deprive a voter of his franchise. They are imperative to the official; but, unless otherwise expressly declared, a failure to conform to the directions will not destroy the vote. The remedy is found, if the dereliction be gross, in a petition under the Controverted Elections Act, or the breach of duty penalised under special provisions of the governing enactment." At the same time all the errors and frailties are qualified that case by the condition that there is a "fair compliance with the Act, according to any fair and reasonable construction of it". It is this requirement insisted upon in all the decisions referred to which is absent in the case before us. The illegality committed is so fundamental, so all pervasive and, so sinister as to make it an election not under the Ordinance. What is not an election under the Ordinance, must be declared to be so without further examining whether result has been materially affected thereby. This appeal has, therefore, no merit and is dismissed with no order as to costs. S.Q./M‑77/S Appeal dismissed.