2010 (7) TMI 1006 - SC - Indian Laws

Whether a candidate in the absence of any recrimination could insist upon counting of the votes cast in favour of the other losing candidates? Whether the election petitioner proves that some dead voters were impersonated and in their name votes were cast?

Issues Involved:
1. Validity of the order striking out paragraphs from the written statement.
2. Application of Section 97 of the Representation of the People Act, 1951.
3. Applicability of Order VIII Rule 6A of the Code of Civil Procedure to election petitions.
4. Interpretation of Section 100(1)(d)(iii) of the Representation of the People Act, 1951.
5. Relevance of the Jabar Singh vs. Genda Lal precedent.

Issue-wise Detailed Analysis:

1. Validity of the Order Striking Out Paragraphs from the Written Statement:
The Supreme Court was divided on whether the order passed by the Learned Single Judge to delete paragraphs 22 to 31 from the written statement of the elected candidate was correct. One judge believed that the application made by the election petitioner under Order VI Rule 16, CPC should be dismissed, as these paragraphs constituted a valid defense and not recrimination. The other judge upheld the deletion, stating that the statements were in the nature of recrimination and counter-claim, which were not permissible under the circumstances.

2. Application of Section 97 of the Representation of the People Act, 1951:
Section 97 allows a returned candidate to file a recrimination petition when the election petitioner seeks a declaration that another candidate has been duly elected. However, in this case, the election petitioner did not seek such a declaration. One judge argued that the plea raised in the written statement was not recrimination but a valid defense to show that void votes were cast in favor of other candidates as well. The other judge held that since no additional declaration was sought, Section 97 was not applicable, and the returned candidate could not raise a counter-claim.

3. Applicability of Order VIII Rule 6A of the Code of Civil Procedure to Election Petitions:
One judge contended that the introduction of the counter-claim provision under Order VIII Rule 6A, CPC, should allow the elected candidate to raise a counter-claim as a valid defense. The other judge disagreed, stating that the Representation of the People Act, 1951, being a special act, overrides the general provisions of the CPC. Therefore, the counter-claim provision under Order VIII Rule 6A could not be invoked in election petitions.

4. Interpretation of Section 100(1)(d)(iii) of the Representation of the People Act, 1951:
The interpretation of Section 100(1)(d)(iii) was crucial. One judge argued that the recount should include all votes to ensure the majority of valid votes, emphasizing that void votes should be excluded regardless of the candidate they were cast for. The other judge maintained that only the votes of the returned candidate should be recounted, as per the precedent set by Jabar Singh vs. Genda Lal, which limits the scope of recounting to the returned candidate's votes.

5. Relevance of the Jabar Singh vs. Genda Lal Precedent:
The majority judgment in Jabar Singh vs. Genda Lal held that in cases where no additional declaration is sought, the recount should be limited to the returned candidate's votes. One judge in the current case found this interpretation unfair and argued for its reconsideration, suggesting that a general recount should be conducted to reflect the true majority of valid votes. The other judge upheld the Jabar Singh precedent, emphasizing its binding nature and the need to follow established legal principles unless the legislature amends the law.

Conclusion:
The Supreme Court was split on the interpretation and application of legal provisions related to election petitions. One judge called for a broader recount to ensure democratic fairness, while the other adhered to established precedents limiting the scope of recounts. The matter was referred to an appropriate bench for further consideration due to the difference in opinions.

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