1954 (5) TMI 41 - SC - Indian Laws

Summary

Issues Involved:
1. Rejection of nomination papers by the Returning Officer.
2. Definition and interpretation of "subscribe" and "sign" in the context of the Representation of the People Act, 1951.
3. Whether the omission to obtain attestation amounts to a technical defect of an unsubstantial character under section 36(4) of the Representation of the People Act, 1951.
4. Jurisdiction of the Returning Officer at the scrutiny stage to remedy essential defects.

Issue-Wise Detailed Analysis:

1. Rejection of Nomination Papers by the Returning Officer:
The main question was whether the Returning Officer was right in rejecting the petitioner's nomination papers. The petitioner, a candidate for the reserved seat, had his nomination rejected because the thumb-marks of the illiterate proposer and seconder were not attested. The Returning Officer held that without attestation, the thumb-marks were invalid.

2. Definition and Interpretation of "Subscribe" and "Sign":
The controversy centered on the word "subscribe," which was not defined in the Act. The prescribed nomination form required the "signature" of the proposer and seconder. The Oxford English Dictionary and Stroud's Judicial Dictionary were referenced to understand the meaning of "subscribe," which can mean to sign one's name or to attest by signing. The General Clauses Act states that "sign" includes "mark" for a person unable to write his name. However, the Act's context showed that "sign" and "subscribe" were used differently. The majority decision of the Tribunal held that "subscribe" in its ordinary sense includes making a mark.

3. Whether Omission to Obtain Attestation Amounts to a Technical Defect:
Section 36(4) of the Representation of the People Act states that the Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. The court held that attestation was not a mere technical or unsubstantial requirement. The satisfaction of the Returning Officer about the identity of the person making a mark was essential and substantial. The lack of attestation at the presentation stage could not be subsequently validated.

4. Jurisdiction of the Returning Officer at the Scrutiny Stage:
The court held that the Returning Officer's jurisdiction at the scrutiny stage was limited to seeing whether the nominations were in order and to hear and decide objections. He could not remedy essential defects or permit them to be remedied at that stage. The attestation and satisfaction of the Returning Officer must exist at the presentation stage. The Returning Officer rightly rejected the nomination papers due to the failure to comply with section 33.

Conclusion:
The appeals were allowed with costs, and the order of the Election Tribunal declaring the elections of the two successful candidates to be wholly void was set aside. The election petition was dismissed, also with costs. The court emphasized the necessity of strict compliance with the statutory requirements for attestation and the limited scope of the Returning Officer's jurisdiction at the scrutiny stage.