Counting of votes and post-counting remedies to the victim candidates of a tainted election process The free and fair election is a basic structure of the Constitution and the will of the people must prevail, it is on the shoulders of the Returning Officer to ensure that the counting of votes is not marred by any interference and tampering or manipulation.

05, Jul 2024 | CJP Legal Research Team

An infamous quote from Tom Stoppard’s play that “It’s not the voting that’s democracy; it’s the counting.” 

In the contemporary context we can say that “It’s not the voting that’s democracy; it’s the fair counting.” 

Counting of votes is one of the foremost and sensitive stages of the election process. Any lapse and compromise with the counting process may be nullified the entire election process if wrong or corrupt counting is found and the aggrieved candidate of tainted election process get right to initiate the legal action against the responsible. 

The Hon’ble Supreme Court in Azhar Hussain v. Rajiv Gandhi Case (1986) said that “the results of an election are subject to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the ‘true’ will of the people is reflected in the results and second, to secure that only the persons who are ·eligible and qualified under the Constitution obtain the representation. In order that the “true will” is ascertained the Courts will step in to protect and safeguard the purity of Elections, for, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not the ‘free and true’ will exercised intelligently by deliberate choice. It is not the will of the people in the true sense at all. And the Courts would, therefore, be justified in setting aside the election in accordance with the law if the corrupt practices are established.”

The judgement may be read here:

 

Introduction

During the Lok Sabha Election 2024, there were several incidents reported where complaints against the returning officer that the RO indulged in corrupt and mal practices and manipulated the election result in biased and partial manner. Some aggrieved candidates did initiate, through their representation and grievances before the poll body i.e. the Election Commission of India (ECI) on polling and counting days respectively but no effective fruits were reportedly visible, to date. Under Article 324 of the Indian Constitution, the ECI is vested with powers of superintendence, direction and control of the elections. But such superintendence and control of the elections is not only limited to the announcement and conduct of the elections but also requires 100% purity of the entire election process.

Part of the statutory mandate regarding counting of votes states that the Returning Officer and Assistant Returning Officer(s) are also empowered to superintendence over the counting of votes only if the returning Officer has been assigned more than one Parliamentary of Assembly Constituency.

Role of Returning Officer (RO)

The Returning Officer (RO) has a pivotal role in the election process and the RO is so called because he/she conducts election and returns elected candidate. The candidate who has been declared elected, shall not be elected by means of corrupt practice and in violation of the provisions of the RP Act, 1951. The term ‘returned candidate’ means a candidate who has been declared elected. During the counting, there must be an equality of votes. 

Section 65 of the Representation of People’s Act (RP) Act, 1951 talks about “equality of votes”, a statutory mandate on the Returning officer but such vote entails that any candidate who is declared elected has not been backed by any corrupt practice and irregularity. 

Under Section 66 of the R.P. Act, 1951, when the counting of votes has been completed, the returning officer shall, in the absence of any direction by the ECI to the contrary, forthwith declare the result of the election in the manner provided by this Act or the rules made thereunder.

The counting of votes conducted by the Returning Officer must be in compliance of section 100(1) (d) (iii) and 100(1) (d) (iv) of the R.P. Act, 1951. The blatant non-compliance can materially affect the result of the election in so far as it concerns the returned candidate. The power to decide the election dispute vested in the High Court with appeal to the Supreme Court as a statutory right saved by the Representation of Peoples Act, 1951. The aforesaid provisions are the statutory compliance binding on the Returning Officer, incorporated under the Act and Rules for ensuring 100% purity of election. Even a single discrepancy of vote during the counting process cannot be justifiable and sustainable. Breach of the compliance mandated would attract prosecution under section 134 of the R.P. Act as well and question the conduct of the Returning Officer and others as a breach of duty without reasonable cause by any person involved in any duty in connection with an election.

Improper rejection of ballot papers:

Under section 100(1) (d) (iii) of the R.P. Act, 1951, improper rejection of ballot papers is a valid ground for declaring an election void. The improper reception or the reception of any vote which is void, referred in Section 100(1) (d) (iii) can relate only to the improper reception of any vote which is void in regard to the returned candidate and refusal or rejection of any vote referred therein can relate only to refusal or rejection of any vote cast in favour of any candidate other than the returned candidate.

 Section 100 of the Act, 1951 sets out the grounds for declaring an election void. It is now more than well settled that the grounds for declaring an election to be void must conform with the requirements of Section 100 of the Act, 1951. 

The High Court has power to order a recount. Even if there was no such prayer in the petition before the High Court, it cannot be said that the High Court acted without jurisdiction. In view of Jabar Singh v. Genda Lal (1963) SCC OnLine SC 280, held that there are certain exceptions where even without recrimination petition, a rival candidate can take advantage of the ballot papers which have not been properly counted in his favour.

The judgement may be read here:

 

Non-compliance with the provisions of the Constitution/RPA and Rules:

Non-compliance of the procedure for free and fair election and provisions of RPA, 1951 itself attracted the prosecution under Section 100(1)(d)(iv) of the RPA as the Election Commission even failed to investigate the grievances of the runner up candidates during the poll and counting as reported on June 4, 2024. The violation of mandatory provisions of RP Act, 1951 and Handbook for Returning Officer (Statutory Compliance) can materially affect the result of the returned candidate and the court is empowered to interfere with it.

In year 2017, the Gujrat High Court nullified the election of Bhupendrasinh Manubha Chudasama, MLA from Dholka Assembly Constituency on grounds of corrupt practice and manipulation under SS. 100(1)(b), 100(1)(d)(iii), 100 (1)(d)(iv), 123(7) of the RP Act, 1951.

The judgement may be read here:

 

Corrupt Practices and Material facts:

Section 100 enumerates the ground on which election of a returned candidate may be challenged and declared void. Commission of corrupt practices by a returned candidate is one of the grounds for declaring an election to be void. Section 123 declares certain practices as “deemed to be corrupt practices”. An election petition must contain concise statement of “material facts” on which the petitioner relies. It should also contain “full particulars” of any corrupt practices that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practices and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practices and particulars thereof.

The decision of Supreme Court in Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511, ruled that;

    “47. All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the         material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.

48. The expression “material facts” has neither been defined in the Act nor in the Code. According to the dictionary meaning, “material” means “fundamental”, “vital”, “basic”, “cardinal”, “central”, “crucial”, “decisive”, “essential”, “pivotal”, “indispensable”, “elementary” or “primary”. [Burton’s Legal Thesaurus (3rd Edn.), p. 349.] The phrase “material facts”, therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, “material facts” are facts upon which the plaintiff’s cause of action or the defendant’s defence depends. What particulars could be said to be “material facts” would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.

The judgement may be read here:

 

Violation of the Handbook for Returning Officer:

The Handbook for Returning Officer is issued for effective conduct of the Election and any infraction of the instruction, if materially affects the result, the Court is empowered to interfere with it. If the victory margin is less than the number of postal votes declared as invalid and the Returning Officer claims to be not aware of the mandatory instruction and failed to re-verify the invalid votes. The oral and documentary evidence placed by RO if not consistent about the number of postal votes received and the number of reject/invalid votes, then, the numbers can be considered manipulated to declare the first respondent as successful candidate. The infraction squarely attracts Section 100(1) (d) (iv) of the Representation of the People Act, 1951. 

Recounting & secrecy of votes:

Recounting is necessary process in order to reflect the true will of the people if counting of such election contaminated with corrupt and mal practices.  In the case of Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and Another, (2014) 5 SCC 312, the Hon’ble apex court held that 

“A right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if re-counting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. “Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results. However, a genuine apprehension of miscount or illegality and other compulsions of justice may require the recourse to a drastic step”.

The judgement may be read here:

 

The apex court further added that before the court permits the re-counting, the following conditions must be satisfied:

(i) The court must be satisfied that a prima facie case is established;

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

(iv) An opportunity should be given to file objection; and

(v) Secrecy of the ballot should be guarded.

Grounds for which candidate other than the returned candidate may be declared to have been elected:

Section 101 of the RP Act, 1951, provides grounds for which candidate other than the returned candidate may be declared to have been elected;

If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion—

• that in fact the petitioner or such other candidate received a majority of the valid votes; or

• that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,

The High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.

Nature and applicability of Section 101:

The insistent requirements of S. 101 are that firstly the returned candidate must have obtained votes by the operation of corrupt practices;

Secondly, such tainted votes must be quantified with judicial assurance and

Thirdly, after deduction of such void votes, the petitioner or other candidates must be shown to have secured a majority of the valid votes.

The decisive factor is the satisfactory proof of the number of votes, if any, attracted by the appellant into his ballot box by corrupt means. The enquiry as to how many votes were definitely obtained by the use of such corrupt practice hinges not on mystic maybes and vague imponderables and prejudice to prospects but on tangible testimony that a number of persons, arithmetically assessed, swung toward and probably voted actually for the returned candidate, directly magnetised by the corrupt practice, so that one could positively predicate those votes as having been obtained by corrupt practice. Where, for instance, a certain number of persons, in violation of the legal ban, have been transported by the candidate and they have been shown, with fair assurance, to have cast their votes in his favour or where specific cases of false personation or double voting at the instance of the candidate practices.  This clear nexus is of critical importance. Happy speculation, hypothetical possibility and clairvoyant surmise, however imaginatively and objectively made, cannot displace this drastic requirement. Where, for instance, a certain number of persons, in violation of the legal ban, have been shown, with fair assurance, to have cast their votes in his favour or where specific cases of false personation or double voting at the instance of the candidate or his agents had occurred and the margin of difference between the victor and the nearest vanquished is narrow and the gap is more than made up by the illegal procured votes, the case for the application of S. 101 will surely arise. 

The judgement may be read here:

 

Ingredients of Section 101:

There are two ingredients of Section 101 which inter alia provide that after declaring election of returned candidate to be void, the High Court may declare the petitioner or such other candidate to have been duly elected. The first ingredient for declaring the election petitioner or other candidate to have been duly elected depends upon error for various reasons in counting of valid votes and if it is found that the petitioner or such other candidate received a majority of valid votes, he is to be declared elected.

The second ingredient provides for establishing that the votes obtained by the returned candidate were obtained by corrupt practices and but for such votes the petitioner or such other candidates would have obtained a majority of valid votes.

The judgement may be read here:

 

Election Petition before High Court:

Under Section 80-A of the RP Act, 1951, the High Court will have the jurisdiction to try an election petition. It is an extension of the original jurisdiction of the High Court to hear and decide the election disputes. 

Section 80A. High Court to try election petitions. — 

(1) The Court having jurisdiction to try an election petition shall be the High Court. 

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose: Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court. 

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.]

Writ Jurisdiction of High Court:

The power of judicial review vested in the High Courts under Article 226 and Supreme Court under Article 32 of the Constitution is an integral and essential feature of the constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The jurisdiction under Article 226 is used for enforcement of various rights of the public or to compel public/statutory authority to discharge the public functions entrusted to them. The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found.

Appeal of Election Petition and Plenary power of Supreme Court:

Section 116A of the Representation of Peoples Act, 1951 provides provisions for statutory appeal of against the order of High Court in election petition.

The Hon’ble Supreme court in Kuldeep Kumar v. U.T. Chandigarh and Others [Civil Appeal No. 2874 of 2024] observed that “the court is duty-bound, particularly in the context of its jurisdiction under Article 142 of the Constitution, to do complete justice to ensure that the process of electoral democracy is not allowed to be thwarted by subterfuges.” The bench 3 judges further added that:

“37. Allowing such a state of affairs to take place would be destructive of the most valued principles on which the entire edifice of democracy in our country depends. We are, therefore, of the view that this Court must step in in such an exceptional situation to ensure that the basic mandate of electoral democracy at the local participatory level is preserved. Pertinently, this is not an ordinary case of alleged malpractice by candidates in an election, but electoral misconduct by the presiding officer himself. The brazen nature of the malpractice, visible on camera, makes the situation all the more extraordinary, justifying the invocation of the power of this Court under Article 142.”

The judgement may be read here:

ECI’s disciplinary jurisdiction over Government servants deputed for election duties:

Apart from the rights provided to the candidate victim of tainted election process due to indulgence of the Officers deputed in the Election Process, Election Commission of India has power of disciplinary action against officers, staff and police personnel deputed on election duties. The disciplinary functions of the EC over officers, staff and police deputed to perform elections duties shall extend to –

1. Suspending any officer/official/police insubordination or dereliction of duty;
2. Substituting any officer/official/police personnel by another such person, and returning the substituted individual to the cadre to which he belongs, with appropriate report on his conduct;
3. Making recommendation to the competent authority, for taking disciplinary action, for any act of insubordination or dereliction of duty, while on election duty. Such recommendation shall be promptly acted upon by the disciplinary authority, and action taken will be communicated to the Election Commission; within a period of 6 months from the date of the Election Commission’s recommendations;
4. The Government of India will advise the State Governments that they too should follow the above principles and decisions, since a large number of election officials are under their administrative control.”

The judgement may be read here:

 

Thus, the purpose of the RP Act and the idea of free and fair election is that one who obtains majority of valid votes by proper and due process of law alone should represent the constituency and will of the people and the will of the people reflected only through 100% pure elections. The sensitiveness of the election process cannot be compromised as “Voting is a civic sacrament.”– Rev. Theodore Hesburgh, C.S.C. said.

CJP Table: Supreme Court Judgements: Free and Fair Elections

This is a ready reckoner Table prepared by the CJP legal Research Team on the Judgements of the Supreme Court on Free and Fair Elections.

 

[i] Ashwinbhai Kamsubhai Rathod v. Bhailalbhai Kalubhai Pandav, Bhupendrasinh manubha Chudasama [Election Petition No. 3 of 2018]

[ii] [PARA 29, Vatal Nagaraj v. R. Dayanand Sagar (1975) 4 SCC 127]

[iii] [PARA 12 & 13, Prakash Khandre v. Vijay Kumar Khandre (Dr) (2002) 5 SCC 568]

[iv] DOPT O.M. No. 11012(4)/2008-Estt. (A) dated 20.03.2024