Padmanabhan vs State of Kerala and Others

M. Ramachandran

The petitioner claims to be a voter of Ward No. XI of Ulikkal Panchayat. He has challenged Section 79 of the Kerala Panchayat Raj Act by stating that the same is violative of the fundamental rights guaranteed to him under the Constitution of India. The challenged provision, according to him, is ultra vires of the Constitution of India. The basis of the case of the petitioner as could be understood from the submissions is as follows:

As per the voters list, in Ward N6. XI of the Panchayat there are 1480 eligible voters of whom 1100 exercised their franchise, put of the 15 postal ballot votes, the 4th respondent got 10 votes and the third respondent got 4 votes. The 5th respondent got 1 vote. It is stated that the third respondent secured 538 votes and the 4th respondent received 532 votes. When postal votes were added, they received the equal number of votes, namely 543. Two ballot papers were found missing. As there was a tie, the Returning Officer, by way of toss, declared the third respondent as the elected member from Ward No. XI.

The petitioner has fielded an argument that in the case of a tie drawing lots is unjustified. He states that an election is being held so as to find the most popular candidate and the person who gets the majority of votes is to be declared elected. Section 79 of the Kerala Panchayat Raj Act authorises the Returning Officer to draw lots if it is found after the counting of the votes that equal number of votes are polled in favour of two candidates. According to the petitioner, adding one extra vote by way of lot to the tally of votes obtained by a candidate is illegal and against the basic provisions of the Constitution. The petitioner submits that the people of the Panchayat, who had exercised their franchise in favour of the 4th respondent are now being deprived of their right tobe represented by a person of their choice as the 5th respondent is declared as the person elected. Section 79 facilitated for this and it is submitted that this runs contrary to the rights guaranteed under Article 19 of the Constitution.

The petitioner has, by way of relief, prayed that section 79 is to be declared as unconstitutional. He also prays for a declaration, and a writ to quash the order whereby the third respondent was declared as elected as the member of the Panchayat. Alternate relief sought for is that the third and fourth respondents should be declared as jointly elected as members from Ward No. XI of Ulikkal Panchayat and for dividing the term equally among them. In the alternative suggestion is to conduct re-election. In short, he is not able to digest the provision for leaving the decision to Providence.

Section 79 of the Act springs into action when there is tie. It may be that the margin between two candidates at times will be too slender, but when there is a majority the defeated candidate may not be able to contend that in view of the slenderness of the margin of votes the mandate of the electorate was to see that he also should be given privileges equal to a successful candidate. The statute provides for a practical approach in the case of a tie whereunder lots are drawn and depending upon the out come a person is deemed to have got an additional vote. This is not a provision which is exclusively incorporated in the Panchayat Raj Act. It is a well accepted method of procedure in the matter of elections under the Representation of Peoples Act and also to other bodies and Corporations where election is a method for selection of candidates. The petitioner has only a right to vote in an election but in the matter of deciding as to who should represent a constituency or a ward the law prescribes the method which is easy and practicable and it cannot be treated or termed as opposed to fairness. The petitioners''s suggestion in this case is that areelection may be ordered or both the candidates are to be declared as elected. It does not sound sensible. The petitioners''s contention that his fundamental rights guaranteed under Article 19 of the Constitution of India stands violated also appears to be an empty, far fetched plea and has not been substantiated.

There might be an element of arbitrariness in the method suggested by statute. But life itself at times throws challenges, on the boarder lines of arbitrariness. I can see Section 79 only as a piece of law, which is least objectionable, to come over a situation of impasse. The principle of casting vote is not alien to election; it is resorted to, so as to get across lawlessness. Lots, or spin of coin may decide the fate of an aspirant, but when circumstances conspire, the above is accepted as a democratic, civilised method.

Guide for Meetings and Organisations by N.E.Renton (1961, Sweet & Maxwell) states that at common law, there is no casting vote, and an equality of voting means the motion is defeated. But if the Rules give the Chairman a casting vote, he usually casts it so as to preserve the status quo. Here Section 79 clearly makes provision to take over the situation, and if one vote is sufficient to tilt the balance in favour of a candidate, the Returning Officer is authorised to draw lots and the process of election thereby is completed. The procedure is the least objectionable, compared to what is suggested by the petitioner. The petitioner may note that even according to his averments, there are at least 380 voters in the Panchayat who had not gone to the polling station on the date of the poll. That may be for various reasons. If the contention of the petitioner is examined, it will be seen that a person who secures 543 votes in fact gets the support of less than 36% support of the villagers. But by a fiction he is treated as the representative of the whole villagers. There has to be a rational approach in these matters, and arithmetical precision or stiff logic will find themselves out of place. In that view, section 79 cannot be considered as interfering with the fundamental right of the petitioner. I see no reason to interfere in the matter. The Original Petition is dismissed.