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Judgment
Ramesam, Offg. C.J.
This is an application for a writ of certiorari for quashing the order of the Election Commissioner in O.P. No. 56 of 1932, the Commissioner
being the Principal Subordinate Judge of Tinnevelly. The facts of the case may now be stated. An election had to be held for the Tiruchendur circle
to the District Board of Tinnevelly. There are two seats for that circle. One of the seats is reserved for a Mahomedan and the other seat is open to
all and a Mahomedan may be elected even for that seat. Three candidates stood for these two seats. One was Mr. Daniel Thomas Nadar, a
Christian, and he was elected by an overwhelming majority of votes and no question about the validity of his election arises before me. The other
two candidates were two Mahomedan gentleman, viz.'' Mr. M.K. Mahomed Asan Maracair, the petitioner before the Election Commissioner, and
the respondent before me, and Mr. A.K. Billi Sahib, Advocate, Tinnevelly, respondent 1 before the Election Commissioner, and the petitioner
before me. The date fixed for the polling was 15th Octoher 1932.
Now it happens that there is a large number of Mahomedan voters in the polling area of Kayalpatnam which is within the Tiruchendur circle.
Naturally many of these would be gosha ladies. As early as 3rd July 1932 the Inspector of Local Boards issued a circular, Ex. E, directing that in
the case of booths set apart for women the agents of candidates wishing to watch the proceedings at the poll on behalf of the candidates should be
females and not males, but that the candidate himself may be admitted into these booths. In September 1932 a petition was sent to the election
authority (inspector of Boards) paying for special facilities to be given to women voters in the matter of recording their votes. He requested the
Tahsildar of Tirhuchendur to report whether suitable ladies will be available for doing the duties of polling and identifying officers (Ex. A). He
followed this by Ex. 3 enclosing copies of the petitions received from the Mahomedans. There are two requests in these petitions. The first is for
more convenient polling booths. As to this the officer who addresses Ex. 3 observes:
It is impossible to satisfy every one but I wish you would look into the matter and do what you can to placate them. At best it will have be a
compromise.
The second request is with regard to the arrangement for gosha ladies. As to this the officer observes:
Franchise and purdah do not go very well together, but as an initiary stage we might make an effort to render the transaction easier.
He then refers to the fact that orders had already been issued excluding male agents though candidates will be permitted to be present. He then
discusses the question of women polling officers. What actually happened on the election day was that five women polling officers were appointed
for five of the booths. We are not now concerned with the second and third booths or the first booth. At the fourth booth there were 300 purdah
voters, of whom 139 voted. Mr. Bijli was represented by a woman agent at that booth. The fifth and the sixth booths were in the one hall, and
ballot; boxes were placed in that hall at either end. There were 269 purdah voters in the fifth and 344 purdah voters in the sixth booth, Only 13
voted in the fifth booth and one voted in the sixth. The candidate, Mr. Bijli, was sitting in this room. The polling officers for these two booths were
P. Ws. 2 and 3. On 12th October 1932 the District Election Officer sent a circular Ex. 1. It runs thus:
I am directed by the Inspector to inform you that gosha ladies will have to unveil themselves in the polling booths if their identity is challenged by
the candidates or their female agents, etc.
The Election Commissioner who is the Principal Subordinate Judge of Tinne-velly characterises Ex. 1 as ""an extraordinary document"" in para. 2
of his judgment, and again in para. 4 he calls it ""a grotesque order,"" an ""absolute travesty of all proper conduct of elections."" He then says:
I have no doubt that this circular, Ex. 1, was perfectly ultra vires and illegal.
Again it would seem that Mr. Bijli Sahib was sitting in the room and was insisting that each purdah voter should unveil herself in accordance with
this circular. There is some dispute between the parties as to whether the unveiling should be to himself or to the polling officer. Mr. Bijli himself
says that he wanted that they should unveil, i.e., ""show"" themselves to the polling officer. But P.W. 5 says that he insisted on their showing their
faces to him. But in cross-examination P.W. 5 adds that she herself asked the women voters to show their faces to herself. The Election
Commissioner believes P.W. 5 in preference to Mr. Bijli Sahib, and sitting for the purpose of issuing a writ of certiorari it is not for me to weigh the
oral evidence. I will accept the finding of the Election Commissioner for the purpose of the discussion that follows: The Election Commissioner
observes:
Para. 7. - Respondent 1 seeks to rely for support in Ex. 1, the circular of the District Election Officer; it is again clear that Ex. 1 is absolutely
unwarranted and contrary to the spirit, of Kr. 19, 21 and 23 and the various circulars of the Inspector of Local Boards, and if Ex. 1 begins with
saying that ''as directed by the Inspector'' that cannot be believed at all, and no instructions of the Election authority authorising such a circular are
placed before me and on the other hand all that we have, show to the contrary. Respondent 1 must therefore be held guilty of conduct coming
within Section 171-C, I.P.C., as interfering with the free exercise of the electoral rights of the women voters.
He then comes to the conclusion that under Rule (10)(a) of the rules, as to disputes as to elections the election, ought to be set aside. In my turn,
I have to characterise this paragraph as somewhat extraordinary. Whether Ex. 1 is warranted or unwarranted by the rules, if Ex. 1 has been issued,
it strikes one that Mr. Bijli Sahib was within his rights if he did insist on women voters-unveiling themselves; and assuming that there is anything
wrong, the error would lie with Ex. 1 and not with the conduct of Mr. Bijli Sahib. Again, the Elections Commissioner says that the statement in Ex.
1 that it was directed by the Inspector cannot be believed. The reason given for this is that no instruction of the Election Authority authorizing such
a circular was placed before him. He also observes that ""all that we have, show to the contrary."" I am not able to see anything in the record
showing to the contrary. When we remember that the officer who issued Ex. 1 is a public servant discharging duties as such, one would think that
the natural presumption is that the statement made by him in Ex. 1, that he was directed by the Inspector to issue the instructions in it is correct and
it is for those who challenge the truth of the statement to show that it is false. The Election Commissioner adopts exactly the opposite course. In my
opinion there is no justification in this case for saying that the statement in Ex. 1 cannot be believed to be true. On the other hand, every
presumption ought to be made that the officer who issued Ex. 1 made a correct statement. There is no evidence to the contrary, but assuming that
all his part of the reasoning of the Election. Commissioner is right the next conclusion to which he comesi that because Ex. 1 was issued and
because the statement in it is false it follows that Mr. Bijli Sahib is guilty of an offence u/s 171-C, I.P.C., strikes me as very extraordinary. Section
171-C, I.P.C. runs:
(a) Whoever threatens any candidate or voter or any person in whom a candidate or voter is interested with injury of any kind, or (b) induces or
attempts to indues a candidate ''or voter to believe that he or any person in whom he is interested will become or will be rendered an object of
Divine displeasure or spiritual censure, etc.
I am unable to see how the two clauses of this section have anything to do with the facts as held to be proved by the Election Commissioner. It
is (said that Mr. Bijli Sahib seated in an easy chair was remarking as the voters were proceeding that gosha women need not vote and that the
better thing for them would be to remain at home and that his own wife remained at home. I am unable to see in all this either a threat to any
canditate or any voter with an injury of any kind or an attempt to induce a belief in the voter that he would be rendered the object of Divine
displeasure. How from the facts the Election Commissioner holds to be proved in the case he concludes that an offence u/s 171-C, I.P.C., has
been committed passes my Comprehension. It is on these two conclusions namely, (1) that the circular Ex. 1 is ultra vires and (2) that an offence
u/s 171-C, I.P.C. has been committed that the Election commissioner has set aside the election. I have already said that the second conclusion is
absolutely unjustified.
Now I proceed to a consideration of the first question whether Ex. 1 is unwarranted, extraordinary or grotesque and is ultra vires. A perusal of
the various doouments issued by the election authorities shows that they were anxious to meet the wishes of the gosha ladies as far as possible. But
as was observed in Ex. 8 purdah and franchises do not go very well together. I do not say that on that account such sympathy and help to gosha
laclies as is possible need not be giveri. On the other hand, it is the duty of the ejection authorities to do their best for rendering such help as they
can and meeting halfway the wishes of gosha electors. But what strikes me in this case is that the election officers have done their best in that
regard. They provided women polling officers and they directed that the agents of candidates should be only women; and personally I am unable to
see that they could have done anything more. But even assuming that a more intelligent person can devise some better method of meeting the
wishes of the gosha ladies, can we say that the circular Ex. 1 is unwarranted or grotesque? In my opinion, it is nothing of the kind. It is true that if a
voter is challenged certain questions may be put to him and if ""he answers them in the way prescribed he shall be allowed to vote: see Rule 21. But
Rule 23 provides, that, if a candidate undertakes to prove an offence of personation, the polling officer shall observe a certain procedure in respect
of the voter. Now it is a matter of common sense that no human being can charge another with personation unless he has seen him. If A charges B
with personating G such a charge is impossible unless A has seen B. On the face of it. Rule 23 certainly contemplates that a candidate should have
an opportunity of seeing the various voters so that he may have an opportunity of judging whether the offence of personation is being committed or
not. If no offence is committed, he has to rest content. But if one is committed, the procedure in Rule 23 has got to be observed. I am unable to
follow the suggestion that the women voters should not be compelled to unveil themselves. I even proceed to the length of holding that a candidate
or his agent should have an opportunity of looking at the voters. If such an opportunity is not given, personations can go on ad infinitum without the
possibility of the fact being noticed by the candidate or the voters. I do not think that it is the intention of the authorities that election should be
allowed to go on with wholesale personations and with no means of preventing them. When we start with this position, then there is no escape
from the conclusion that Ex. 1 was a proper circular to issue. I regret therefore that I have to differ from the conclusions of the Election
Commissioner in this matter also.
It may be said ''that my conclusions will be very inconvenient to gosha ladies. I quite recognize the fact and I quite sympathise with them. It is
not that I am unwilling to look at the situation from their point of view, but we have got a very different situation to deal with. On the other hand, we
have yet to see that elections are conducted without the possibility of personations. In the present case there are two kinds of personations
possible. A person may come and say that he is some other person which he is really not. On this matter it may be said that the candidate himself
who does not know the gosha ladies personally is really unable to discover such personation. But there is a second kind of personation which is
possible and which the candidate will be able to discover. A lady may first come describing herself to be A and give her vote. Let us assume that it
is immaterial whether she is A or not or at any rate there is no means of discovering that she is not. After a few votes have been recorded, the
same lady may come again and may now call herself to be B, and if a candidate sees the person voting on both occasions, assuming he is unable to
say she is not A or she is not B, he certainly will be able to say she is not both A and B and personation of this kind is certainly in the power of Mr.
Bijili Sahib to prevent; and it is this kind of personation that was very much apprehended at the time of the election, but whichever kind of
personation was apprehended I think it will be conceded on all hands that elections should be so conducted as to obviate the possibility of such
personations. This is the consideration on the one hand.
On the other hand, one has to recognize that several sections of the people of this country such as Mahomedans, Kshatriyas and other Hindus
observe gosha and we now see that they are anxious to exercise the franchise. All that can be said is that, if they are anxious to exercise the
franchise, they should relax slightly from their adhering to the gosha system. No one wants them to drop the gosha altogether nor can anyone
compel them to do so. But if reasonable facilities are given to them on the election day so that they need not have to jostle themselves among the
males and a separate room is made available to them for the purpose of voting just for an instant at least they should show themselves to be seen
by the candidates. Personally I am of the opinion that an election is impossible without at least some relaxation on the part of the gosha ladies of
their gosha system However it is possible I am erring"" in my opinion and a better system can be devised which can satisfy both the-wishes of the
gosha voters on the one-hand and the need for an election being conducted without possibility of personation. That some superior method is not
devised is not to be made a charge-against the election officer who issued Ex. 1. As it is, the officers have all-done their duty and I do not see any
jurisdiction for using violent language against them.
It is said that the Election Commissioner has not acted without jurisdiction. If it is merely questions of fact on which he has come to wrong
conclusions certainly I cannot interfere, but the two conclusions on which he has based'' his judgment are not questions of fact and as I have
already stated I am unable to agree with them. It is because of these conclusions he is able to exercise any jurisdiction. It is said that that matter is
in my discretion and that if a re-election is ordered it is harmless. But it is not so On the judgment of the learned Election Commissioner the-
authorities would be in a fix and they would not know what to do. In my opinion, what they have done is correct and things are not to be left in
such a condition that they would have to do something different hereafter. It is really for the purpose of making this clear that I am anxious to
interfere in this matter. In my opinion, there is nothing wrong in the election that has happened and it ought not to have been set aside. It rqally
remains to sympathise with gosha ladies if elections cause them a little inconvenience. ""While sympathising with them, I observe that elections
cannot be conducted in a different manner for their convenience except as indicated by me.
I quash the order of the Election Commissioner as totally without jurisdiction and declare that the election as held is perfectly good. The
petitioner will receive his costs from respondent 1. I fix pleader''s fee at Rs. 100 and he will pay the costs of respondent 2 whose pleader''s fee I
fix at Es 50 for they had nothing to do in this Court but were unnecessarily impleaded. The petitioner will be entitled to his costs in the lower Court
from respondent 1 and I fix the pleader''s fee at Rs. 100.