2000 Supreme(SC) 1404

2000(6) Supreme 12
SUPREME COURT OF INDIA
(From Patna High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & K.G. Balakrishnan, JJ.
Shyamdeo Pd. Singh -Appellant
versus
Nawal Kishore Yadav -Respondent
Civil Appeal No. 376 of 1999
Decided on 28-8-2000
Counsel for the Parties :
For the Appellant : P.S. Mishra, Sr. Advocate, Amitesh Kumar, Vivek Singh, L.R. Singh, Chandra Shekhar, Ms. Swarupa Reddy, and Upendra Mishra, Advocates.
For the Respondent : Ex-Parte.

IMPORANT POINTS
1. Inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls though they were not qualified to be so enrolled cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951.
2. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Representation of the People Act, 1950.

Headnote:Representation of People Act, 1951-Section 100(1)(d)(iii)(iv) read with Sections 19, 27 and 62-Constitution of India-Article 329(b)-Election to Legislative Council-Teachers constituency-Petition for setting aside election of a returned candidate-Ground that large number of ineligible persons were enrolled as electors and consequential improper reception of votes cast by illegal electors-Not tenable-A person enrolled in electoral roll cannot be excluded from exercising right to cast vote-Inclusion of person or persons in electoral roll though were not qualified to be so enrolled cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100.

       A perusal of the provisions of Sections 62, 16, 19, 23 and 27 leads to certain irresistible inferences. Article 326 of the Constitution having recognised the doctrine of adult suffrage has laid down constitutional parameters determinative of the qualifications and disqualifications relating to registration as a voter at any election. The two Articles, i.e., Article 326 and Article 327 contemplate such qualifications and disqualifications being provided for, amongst other things, by the appropriate Legislature. The fountain source of the 1950 Act and 1951 Act enacting provisions on such subject are the said two Articles of the Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950 Act provides for disqualifications for registration in an electoral roll, (qualifications having been prescribed by Section 27 thereof), Sections 62 of the 1951 Act speaks of right to vote which right is to be determined by reference to the electoral roll of the constituency prepared under the 1950 Act. The eligibility for registration of those enrolled having been tested by reference to Section 16 or Section 27 of the Act, as the case may be, and the electoral roll having been prepared, under the 1950 Act if a person is or becomes subject to any of the disqualifications provided in clauses (a) (b) (c) of sub-section (1) of Section 16, two consequences may follow. His name may forthwith be struck off the electoral roll, in which the name is included, under sub-section (2) of Section 16 of the 1950 Act. Even if the name is not so struck off yet the person is disqualified from exercising right to vote at the election by virtue of sub-section (2) of Section 62 of the 1951 Act. The qualifications prescribed for enrolment in the electoral roll as provided by clause (b) of sub-section (5) of Section 27 of the 1950 Act are : (i) ordinary residence in a teachers constituency, (ii) being engaged in the relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date. The enquiry into availability of these eligibility qualifications, under the scheme of the 1950 Act is to be made at the time of preparation of the electoral roll or while entering or striking out a name in or from the electoral roll. Section 62 of the 1951 Act does not provide that a person who is not qualified to be enrolled as an elector in the electoral roll shall not be entitled to vote at the election. To put it briefly a disqualification under Section 16 of the 1950 Act has a relevance for and a bearing on the right to vote under Section 62 of the 1951 Act but being not qualified for enrolment in the electoral roll under Section 27 of the 1950 Act has no relevance for or bearing on the right to vote at an election under Section 62 of the 1951 Act. That is the distinction between a "disqualification" and "not being qualified". (Para 14)

       One of the principles underlying the plenary bar on judicial proceedings in election matters created by Article 329(b) is the pre-emptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. The same principle underlies sub-section (3) of Section 23 of 1950 Act. The last date for making nomination for elections in a constituency and the date of declaration of result are the terminus a quo and terminus ad quem between which the electoral rolls must remain untouched. Amendment (which will include inclusion), transposition or deletion of entries in electoral rolls are all taboos in this interregnum. (Para 22)

       Inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls though they were not qualified to be so enrolled cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951. A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast a vote unless disqualified under sub-section (2) to (5) of Section 62 of the Representation of the People Act, 1951. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Representation of the People Act, 1950. (Para 24)

       It is true that the Assistant Electoral Registration Officer-cum-District Magistrate, Patna was not justified in sitting over the objections laying serious challenge to the legality of enrolment of a large number of voters in the electoral roll. Such objections should have been promptly dealt with and disposed of. Withholding of dealing with the objections on the ground that the officer did not have time enough available at his disposal was hardly any justification for the inaction on the part of the officer. The failure on the part of the officer to dispose of the objections has laid to an allegation being made in the election petition that the officer was obliging the ruling party in the State of Bihar as it stood to gain by inclusion of the names of ineligible voters in the electoral roll. Such delay in disposal of the objections has to be deprecated. Preparation and maintenance of electoral rolls is an on going process. A meaningful democracy means participation of all eligible citizens in the exercise of right to vote and exclusion of ineligible voters therefrom. Such goal achieved, the result of election would reflect the will of the people. Watchful and alert citizenry assisted by responsible and responsive bureaucracy entrusted with the task as to electoral rolls is needed a reach the said goal. The need to hear and decide claims for inclusion in or exclusion from electoral rolls promptly and objectively hardly needs to be emphasised. However, we have already held this could not have been a ground for avoiding the election and we leave the matter at that. (Para 23)