R VISWANATHA PILLAI Vs. TKPERIASWAMI PILLAI

JUDGEMENT

(1.) This petition relates to an election held in the Trichinopoly Municipality, and the only question for consideration is whether certain ballot papers that were then recorded are valid or not. These ballot papers are objected to on the ground that they infringe Rule 17 (1) of the Rules for the conduct of Elections of Municipal Councillors. That Rule is as follows: "Any ballot paper which is not duly marked, or on which votes are given to more candidates than there are members to be elected, or on which any mark is made by which the voters may afterwards be identified, shall be invalid. " In the present case the contention before the District Judge of Trichinopoly was that these votes were invalid, because the polling officer had initialed the ballot papers not only on the back as directed in Rule 14 (1) but had also placed his initials on the face. This placing of initials on the face does not per se contravene Rule 14 (1) and we agree with the District Judge that in itself it cannot invalidate the votes and we also agree with the District Judge that the placing of these initials does not in any way facilitate the identification of the particular voter and, consequently, the provisions of Rule 17(1) have not been infringed thereby.

(2.) In this Court a fresh objection is taken to these ballot papers on the ground that the serial number which appears in the counterfoil of the ballot papers has been printed not only on the back of the ballot paper itself but also upon its face, although the form prescribed under the Rules distinctly states that the numbers shall be printed only upon the back. It is argued that this number is a mark by means of which the voter may be identified. The rules, however, prescribe that all ballot papers shall have this number upon the back and there is no doubt that, when the ballot paper is handed to the voter, a candidate or his agent may very easily see this number and make a record of it. Similarly as there is no provision that the backs of the ballot papers shall not be seen during the counting, it would appear that, if the candidate had recorded these numbers with the voter's name against each, it would be possible to identify the voter of any particular ballot paper. The putting of this number on the face would render such a process easier still; but it must be remembered that, although the Rules are framed with a view to obtain secrecy of voting, it is impossible to defeat all attempts which may be made to violate that secrecy, and probably no Rules could be framed which could defeat every deliberate attempt made by a candidate's agent to violate secrecy. It is suggested that even the number on the back of the ballot paper is liable to violate this secrecy, but it is also essential that the ballot paper shall bear some mark on the back for purposes of identification, for, otherwise, there will be no means of preventing false ballot papers being inserted into the box. If it is once conceded that this number on the back is essential, we do not think that the addition of that number on the face would make any difference, unless it were proved that a list of names with the corresponding serial numbers had been prepared and that the voters could, therefore, be identified, No doubt in this case such a list might have been prepared and the voters identified thereby, but it has been laid down in Woodward V/s. Sarsons 10 CPD 733 that the identification must be made by seeing the paper itself or by reference to other available facts. Here the inspection of the paper would not reveal the voter's identity and, if there is no list such as mentioned above available for reference, the identity could not be discovered. We think, therefore, that this number is not a mark by which the voter may be identified within the meaning of Rule 17 (1) and in this connection reference may also be made to the judgment of Field, J. in 4 O Malley and Hardcastle, page 34 in which he follows Woodward V/s. Sarsons 10 CPD 733 and says that it must be only from the mark itself that the means of identification must be obtained. We would, however, point out that the printing of the number on the face of the ballot paper is not authorised under the Rules and should not be repeated in future elections.

(3.) A further contention is raised that the Rule providing for the marking of the serial number on the back of the ballot paper is ultra vires because it is not conducive to the secrecy of the ballot for which purpose the Rules were framed. As remarked above, it is impossible to obtain absolute secrecy if persons are deliberately scheming to violate it. The Rule is a reasonable one made for the identification of ballot papers and for the prevention of insertion of false papers and, consequently, we cannot say that it is in any way ultra vires of the Government.