M.K. Mahomed Asan Maracair vs A.K. Bijli Sahib Bahadur and Others

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 Muhammadan and the other seat is open to all and a Muhammadan 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

Muhammadan gentlemen, viz., Mr. M. K. Mahomed Asan Maracair, the petitioner before the Election Commissioner and the respondent before

me, and Mr. A. K. Bijli Sahib, Advocate, Tinnevelly, the 1st respondent before the Election Commissioner and the petitioner before me. The date

fixed for the polling was the 15th October, 1932.

Now it happens that there is a large number of Muhammadan voters in the polling area of Kayalpatnam which is within the Tiruchendur Circle.

Naturally many of these would be gosha ladies. As early as the 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) praying for special facilities to be given to women voters in the matter of recording their votes. He

requested the Tahsildar of Tiruchendur to report whether suitable ladies will be available for doing the duties of polling and identifying officers (Ex.

A). He followed this by Ex. III, enclosing copies of the petitions received from the Muhammadans. These are two requests in these petitions. The

first is for more convenient polling booths. As to this the officer who addresses Ex. III 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 to 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 initiatory 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 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 the 12th October, 1932, the District Election Officer sent a circular Ex. I. 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 Tinnevelly, characterises Ex. I as ""an extraordinary document"" in

paragraph 2 of his judgment and again in paragraph 4 he calls it ""a grotesque order"" and ""an absolute travesty of all proper conduct of elections"".

He then says:

I have no doubt that this circular Ex. I 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.--""The 1st respondent seeks to rely for support in Ex. I, the circular of the District Election Officer; it is again clear that Ex. I is absolutely

unwarranted and contrary to the spirit of Rules 19, 21 and 23 and the various circulars of the Inspector of Local Boards and if Ex. I 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. The 1st respondent must therefore be held guilty of conduct coming

within 5. 171-C of the Indian Penal Code, 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. I is warranted or unwarranted by the rules, if Ex. I 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. I and not with the conduct of Mr. Bijli Sahib. Again, the Election Commissioner says that the statement in Ex. I

that it was directed by the Inspector cannot be believed. The reason given for this is that no instruction of the Election authority authorising 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. I is a public servant discharging duties as such, one would think that the natural

presumption is that the statement made by him in Ex. I 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. I cannot be believed to be true. On the other hand, every

presumption ought to be made that the officer who issued Ex. I made a correct statement. There is no evidence to the contrary, but assuming that

all this part of the reasoning of the Election Commissioner is right the next conclusion to which he comes, that because Ex. I 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 of the Indian Penal Code strikes me as very

extraordinary. Section 171-C of the Indian Penal Code 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 (6) induces or

attempts to induce 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

candidate 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 of the Indian

Penal Code has been committed passes my comprehension. It is on these two conclusions, namely, (1) that the circular Ex. I is ultra vires, and (2)

that an offence u/s 171-C, Indian Penal Code, 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. I is unwarranted, extraordinary or grotesque and is ultra vires. A perusal of

the various documents 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. III purdah and franchise do not go very well together. I do not say that on that account such sympathy and help to gosha

ladies as is possible need not be given. On the other hand, it is the duty of the Election 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. I 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 C 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

elections 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 Exhibit I 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 recognise 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 difficult situation to deal with. On the one hand, we

have got 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 a personation of this kind is certainly in the power of

Mr. Bijli Saheb 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 recognise that several sections of the people of this country

such as Muhammadans, Kshattriyas 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 any one 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. I. As it is, the

officers have all done their duty and I do not see any justification 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 really 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 the 1st respondent. I fix pleader''s fee at Rs. 100, and he will pay the costs of the 2nd respondent

whose pleader''s fee I fix at Rs. 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 the 1st respondent and I fix the pleader''s fee at Rs. 100.:

Horace Owen Compton Beasley, Kt., C.J.

This is an appeal from an order made by Ramesam, J. on an application for a writ of certiorari quashing the order of the Election

Commissioner in O.P. No. 56 of 1932. The Commissioner was the Principal Subordinate Judge of Tinnevelly.

The appeal arises out of an election held for the Tiruchendur Circle to the District Board of Tinnevelly. There were two seats for that Circle,

one being reserved for a Muhammadan and the other unreserved. There were three candidates for these two seats. One was Mr. Daniel Thomas

Nadar who was elected and in respect of whose election no question arose. There were two other candidates for the remaining seat, namely, the

petitioner before the Election Commissioner and the appellant here, and the 1st respondent. The date fixed for the polling was the 15th October,

1932. There were a large number of Muhammadans entitled to vote in the polling area in question, many of them being gosha ladies. Polling booths

were set apart for women and the Inspector of Local Boards on the 3rd July, 1932, issued a circular, Ex. E, directing that the candidates

themselves should be admitted to these booths or, if they employed agents on their behalf, they should be females and not males. In September,

1932, a petition had been sent to the Inspector of Local Boards praying for special facilities to be given to women voters in the matter of recording

their votes; and it is clear from the documents that the Election Authority did all that was possible to provide them. In consequence of this, five

women polling officers were appointed at five of the booths. We are only concerned with three out of the five booths. The 1st respondent was

represented by a woman agent at one booth, there being 300 purdah voters at that booth, of whom 139 voted. The other two booths were in one

hall and ballot boxes were placed in that hall at either end. In one of these booths there were 269 purdah voters and in the other 344 purdah

voters. Only 13 voted in the former booth and one in the latter. The 1st respondent being a candidate sat in this room. Three days before the

election, namely, the 12th October, 1932, the District Election Officer sent a circular (Ex.; I) which plays a prominent part in these proceedings.

That states:

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.

The election proceeded and it is alleged that the 1st respondent insisted on the gosha ladie who came to vote at the booth in which he sat

showing their faces to him. The 1st respondent''s case is that he merely insisted that they should unveil themselves to the female polling officer. The

Election Commissioner does not accept the 1st respondent''s version with regard to this. It is alleged that, as a result of this conduct of the 1st

respondent, the gosha women voters were scared away being unwilling to unveil themselves before the 1st respondent through shame and that the

1st respondent was, therefore, guilty of an offence relating to elections u/s 171-C of the Indian Penal Code. The petitioner prayed that the election

of the 1st respondent should be declared void, that the petitioner should be declared to have been duly elected to the seat or that a fresh election

should be ordered. The Election Commissioner set aside the election and directed that a fresh election should be held. As before-mentioned,

Ramesam, J. quashed that order.

In the course of his order the Election Commissioner has very severely condemned Exhibit I which in his opinion was absolutely illegal, ultra

vires and unwarranted. He also describes it as a curious and ill-conceived circular and as being contrary to the spirit of Rules 19, 20 and 23. It is

obvious that he makes Exhibit I wholly the basis of his decision. Finding that it was an illegal circular and ultra vires, he finds that the 1st respondent

took advantage of it to scare away the gosha women voters by insisting on their unveiling before him and he considers that the petitioner was

enormously injured"" to use his own language by the order of the District Election Officer contained in that document. Ramesam, J., however, has

disagreed with this view of the Election Commissioner and is of the view that Exhibit I was not an illegal circular but on the contrary was within the

spirit of the rules and a proper and reasonable facility in the interests of the women voters and the candidates themselves. He held that no offence

u/s 171-C, Indian Penal Code, had been committed. That being so, he was of the opinion that the Election Commissioner had acted without

jurisdiction and he accordingly quashed his order and set the election aside.

The power of the High Court to set aside orders made by Election Commissioners which are final on Courts subject to the writ of certiorari

has been considered in a number of decisions; and it is quite clear from them that the High Court will not interfere by a writ of certiorari with such

orders unless the Election Commissioner has acted without jurisdiction or in excess of it. Recent decisions on this point are Kumaraswami Mudali,

minor, by next friend Ganapathi Mudali Vs. Muniratna Mudali and The Board of Revenue and Another, , M. Shanmuga Mudaliar Vs. S.

Subbaraya Mudaliar and Another, and Govindaswami Pillai v. Ramalingaswami Pillai (1931) 62 M.L.J. 644. Where a Court has jurisdiction but is

guilty of an error of law or fact, a superior Court cannot interfere. In my view, the whole case turns upon the answer to the question whether

Exhibit I was illegal and ultra vires or not. Mr. S. Duraiswami Aiyar contends that it was and that there is nothing in the rules to warrant the issue of

such a circular."" We have, therefore, to consider the rules in question, namely, Rules 19, 21, 22 and 23 of the Election Rules. Rule 19 says that

special facilities in accordance with the instructions, if any, issued by the Election Authority in that behalf may be accorded to women electors. Rule

21 provides for the questioning of the elector and says that if the candidate or his polling agent so requires or indeed the polling officer, of his own

accord so requires, there may be put either or both of the following questions to the elector, namely, (1) ""Are you the person enrolled as follows

(reading the whole entry from the roll)"" and (2) ""Have you already voted at the present election at this polling station or at any other polling station,

and that, if the answer to the first question is in the affirmative and the second in the negative, the elector shall be supplied with a ballot paper. Rule

22--a rule with which we are not here concerned--relates to the case of a person who applies for a ballot paper after another person has voted as

such elector. Rule 23 provides for challenged ballot papers and says that, if any candidate or polling agent declares and undertakes to prove that

any person by applying for a ballot paper has committed the offence of personation, the polling officer may require such person to sign his name

and enter his address in the list of challenged votes or, if he is unable to write, to affix his thumb impression thereto, and may further require such

person to produce evidence of identification and that, if the answers to questions described in Rule 21 are satisfactory, the elector is to be allowed

to vote after having been informed of the penalty for personation. There is another important rule which has to be mentioned and that is Rule 12

which reads as follows:

The polling officer shall keep order at the station, shall see that the election is fairly conducted, shall regulate the number of electors to be admitted

at one time and shall exclude all other persons except his own clerks, the candidates, one agent of each candidate at a time (hereinafter referred to

as the polling agent) appointed in writing by the candidate, the police on duty, and such persons as may be admitted for the purpose of identifying

the electors.

It is clear--and this is indeed conceded by Mr. S. Durai-swami Aiyar--that a candidate has the right to be in the polling booth. He can be

represented by an agent if he desires or he can look after his own interests himself, and obviously to see the voters themselves is his privilege and

right for the purpose of preventing impersonation. He is, therefore, entitled to be -present and see that no person votes in the name of another

whose name is on the electoral roll. Now it is necessary to refer to Rule 19 again. Under that rule the Election Authority may provide special

facilities to women electors to vote. It is quite obvious that, when the Election Authority provides such facilities for gosha women electors, he must

also attach to them certain safeguards in order to prevent impersonation and, when he does so, he is acting, in my view, in accordance with those

rules which are designed to prevent impersonation. Rules 21 and 23 do not provide the necessary or indeed any safeguards against impersonation

by gosha women. When a veiled gosha woman elector applies for a ballot paper, upon what material is the candidate or his agent to challenge the

elector ? He cannot do so without seeing that person''s face. Nevertheless, under Rule 23 he has to undertake to prove that such person has

committed the offence of personation. Rule 23 does not cover the case of gosha women electors. Moreover the warning to the challenged elector,

namely, as to the penalty for personation, would in the case of a gosha elector affixing her thumb impression be entirely useless. How could such a

thumb-impressionist thereafter be traced and the penalty enforced unless the thumb impressions of many thousands of women were taken

afterwards for comparison which is clearly impossible. Rule 23, therefore, whilst providing safeguards in the case of the male electors and women

who are not gosha omits to do so in the case of gosha women electors; and if whilst granting facilities under Rule 19 to those women to vote,

safeguards are not at the same time provided, it would be possible for wholesale impersonation to be practised; and I am utterly unable to

understand the language used by the Election Commissioner towards the Election Authority and Exhibit I which he issued. In my opinion, it was

essential that provision such as is set out in Exhibit I should be made; and there is nothing whatever to justify the violent language used towards the

Election Authority and Exhibit I; and I entirely agree with Ramesam, J. in his criticism of that language. Unfortunately this utterly unreasonable view

taken by the Election Commissioner of Exhibit I clearly became a sort of obsession. It was the root evil of the whole case. It being an illegal and

unwarranted document, in his opinion, the 1st respondent took full advantage of it and scared away the gosha women electors. That is what runs

throughout the Election Commissioner''s order. It even causes him to criticise the action of the 1st respondent as follows:

There is also this further fact that the 1st respondent is spoken to by all the witnesses to have sat and leaned on an easy chair in front of the booth.

The respondent agrees he sat on an easy chair. To my mind, even this conduct seems to be perfectly improper and as tending to discourage and

therefore interfering with the freedom of gosha Muslim women voters from moving about and coming and recording their votes.... Especially seeing

that it was a case of gosha Muslim women a more proper and decent conduct would have been to sit on an ordinary chair with as little obstruction

as possible. The evidence is that the 1st respondent got a private easy chair and leaned himself on it in front of the booth.

It is difficult to see how the selection of an easy chair instead of an ordinary chair as a resting place by a candidate can have any, possible

bearing upon the question of whether an election offence has been committed. I am clearly of the opinion that Exhibit I was not illegal or ultravires

and that the 1st respondent in calling upon the gosha women electors to unveil their faces before him was acting in accordance with that circular. If

by so doing a large number of gosha electors refrained from voting or if, as the appellant described it, they were scared away, that is a difficulty if it

is one which seems to me to be attendant upon gosha women exercising the franchise. Certainly no election offence u/s 171-C, Indian Penal Code,

has been here disclosed. The gosha women electors were perfectly free to vote if they wished to do so and the respondent did -nothing which in

law could be held to come within that section. This finding, however, does not conclude the matter although it goes a very long way towards doing

so. The question is not whether there has been here any error in law on the part of the Election Commissioner; and this Court is only entitled to

interfere, as has already been remarked, if there was a want of jurisdiction at the commencement of the proceedings. Once there is jurisdiction, any

errors committed subsequently cannot take away the jurisdiction once obtained. The question which now arises, therefore is, did the election

petition itself disclose an election offence which the Election Commissioner could take cognizance of? Reading the petition as a whole, I am

satisfied that it was all based upon Exhibit I and the complaint that the 1st respondent was, therefore, not exercising any legal right to be present

and to demand the gosha women electors to unveil before him, but was acting illegally. The question as to whether Exhibit I was illegal or not, upon

which the whole case turns, was one which had to be decided before the Election Commissioner assumed jurisdiction and he was in error in

supposing that the petition disclosed any offence. It certainly did not. He, therefore, had no jurisdiction to entertain the petition at all. The appeal is

dismissed with costs. Advocate''s fee Rs. 200.

Bardswell, J.

I agree.