Kerala High Court Rejected Candidate's Vote Who Allegedly Voted For Himself, Cites Ambiguity/Uncertainty In Ballot Paper

Justice Bechu Kurian Thomas observed that the intention of the voter was not reflected on the ballot paper. As per Rule 11 of the Kerala Municipality Standing Committee Rules, 2000, a voter has to mark ‘X’ on the ballot paper against the name of the candidate for whom he intends to vote. The Court perused the ballot paper and observed that ‘X’ was not marked properly against his name and rejected his vote.

“A voter's intention is not what is expressed subsequent to the casting of the ballot. The intention has to be manifested through the ballot, in the manner provided, that too, at the time when he exercised his right of franchise. Subsequent assertions or expressions of the voter have no bearing on the intention. Further, when the nature of the mark appearing on the ballot paper can be interpreted or perceived differently by different persons, there arises a lack of clarity on the symbol. The ambiguity or uncertainty created by the ballot paper cannot be substituted by any subsequent affirmations. Even if the voter is the candidate himself, that is not a reason to assume that he had cast his vote in his favour, if the ballot paper does not expressly reflect or manifest such an intention. As mentioned earlier, the intention of the voter is to be deduced from the ballot paper and not by any antecedent or subsequent expressions.”

The Court was considering an allegation between two candidates (petitioner and 6^th respondent) who stood for the election to the post of Chairman for the Standing Committee for Education and Sports of the Cochin Corporation. Both of them were Councillors of Cochin Corporation.

The petitioner alleged that the 6^th respondent, being a candidate, has not cast a valid vote for himself as per Rule 11 of the Kerala Municipality Standing Committee Rules, 2000. Even though allegations were raised during the election, the returning officer refused to consider it. Out of the 7 votes that were counted, the 6^th respondent received 4 votes and won the election. The writ petition was filed by the petitioner after obtaining copies of Ballot papers under the Right to Information Act.

The petitioner alleged that the 6^th respondent has not voted as per the procedure prescribed in Rule 11. Rule 11 prescribed the procedure for the election of the Chairman. As per the rule, a member has to cast vote by marking ‘X’ on the ballot paper against the name of the candidate. After this, the member has to put his signature and name on the reverse side of the ballot paper.

On the other hand, the 6^th respondent denied all the allegations and contended that he voted for himself only.

Perusing the ballot paper, the Court noted that the ballot paper consisted of markings against the name of 6^th respondent as well as that of the petitioner. It noted that Rule 11 mandated that the alphabet ‘X’ has to be marked, but the symbol marked by the 6^th respondent did not look like the alphabet ‘X and was ambiguous.

“On verification of the ballot paper, it is evident that the mark ‘X’ was not put either against the petitioner or against the 6th respondent, though there are markings against both. Even otherwise, Rule 11(7) of the Rules explicitly states that a vote can be cast only by writing the mark ‘X’. The symbol ‘X’ cannot be written by two lines scored against one. It should be one single line over another single line. Though the nature of the mark or alphabet is not deducible from the ballot paper, as long as the alphabet is not 'X', it cannot be held that the vote is validly cast.”

The Court relied upon Walter D. Paul v Ummer (1990) to state that when a rule stipulated that ‘X’ has to be marked for casting a vote, making any other symbol on the ballot paper would be rejected. In Walter (supra), the Court noted that a tick mark was made instead of ‘X’ in the ballot paper which was rejected.

Accordingly, the Court allowed the writ petition and rejected the vote of the 6^th respondent. It also set aside the election of the 6^th respondent as Chairman of the Standing Committee for Education and Sports of the Cochin Corporation.

Counsel for the petitioner: Advocates C.S.Ajith Prakash, T.K.Devarajan, Babu M., Ancy Thankachan, Nidhin Raj Vettikkadan, D.Anil Kumar, Vilasini Nayak, Gouri Kailash, Krishnendu.D

Counsel for the respondents: Senior Government Pleader K.Amminikutty, Standing Counsels K. Janardhana Shenoy, Deepu Lal Mohan, Advocates P.K.Varghese, K.S.Arun Kumar, M.T.Sameer, Jerry Mathew, Reghu Sreedharan, Rameez M. Azeez

Citation: 2023 LiveLaw (Ker) 660

Case title: Bastin Babu v State of Kerala

Case number: WP(C) NO. 18229 OF 2023

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