A) ABSTRACT / HEADNOTE
This judgment in Keshav Laxman Borkar v. Dr. Devrao Laxman Anande (1960) 1 SCR 902 holds substantial significance in Indian election jurisprudence. The Supreme Court dealt with the interpretation of Section 101 of the Representation of the People Act, 1951, particularly the phrase “majority of valid votes,” and whether votes cast for a disqualified candidate could be treated as “thrown away” votes. The Election Tribunal had disqualified the returned candidate (respondent) for holding an office of profit under the government, and accordingly declared the appellant (Borkar) elected on the ground that he was the only remaining candidate. The High Court affirmed the disqualification but reversed the declaration of the appellant as duly elected, which led to this appeal. The Supreme Court dismissed the appeal, holding that the votes cast in favor of the disqualified candidate could not be considered invalid unless voters knowingly threw them away. It emphasized that validity of votes depends on their procedural legitimacy, not on retrospective disqualification, unless supported by proper pleadings and evidence of voter knowledge.
Keywords: Office of profit, Valid votes, Thrown away votes, Representation of the People Act, Disqualification under Article 191, Election Tribunal, Section 101.
B) CASE DETAILS
i) Judgment Cause Title: Keshav Laxman Borkar v. Dr. Devrao Laxman Anande
ii) Case Number: Civil Appeal No. 455 of 1958
iii) Judgment Date: 30th September 1959
iv) Court: Supreme Court of India
v) Quorum: S.R. Das, C.J. and K. Subba Rao, J.
vi) Author: Das, C.J.
vii) Citation: (1960) 1 SCR 902
viii) Legal Provisions Involved:
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Article 191(1)(a) of the Constitution of India
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Section 101 of the Representation of the People Act, 1951
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Rules 57 and 58 of the Conduct of Election Rules
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Section 36(8) of the Representation of the People Act, 1951
ix) Judgments overruled by the Case: None explicitly overruled
x) Case is Related to which Law Subjects: Election Law, Constitutional Law, Administrative Law
C) INTRODUCTION AND BACKGROUND OF JUDGEMENT
The appeal arose from the disqualification of a legislative assembly member elected to the Bombay Legislative Assembly. The respondent, Dr. Devrao Laxman Anande, was declared elected despite holding a position as an Insurance Medical Practitioner under the Employees’ State Insurance Act, 1948, which constituted an office of profit under the State Government. This disqualification, under Article 191(1)(a) of the Constitution, was the basis for the election petition filed by the appellant. The key dispute, however, arose after the Election Tribunal not only set aside the respondent’s election but also declared the appellant as elected, citing the latter as the sole remaining candidate. The High Court later disagreed with this conclusion, and hence the appeal reached the Supreme Court. The Court interpreted Section 101 of the Representation of the People Act and rejected the concept of “thrown away votes” without evidence of voter intent.
D) FACTS OF THE CASE
The election in question was conducted for the Bombay Legislative Assembly Constituency No. 129 (Mazagaon) on 11th March 1957. Initially, four candidates filed nominations, but two withdrew, leaving the appellant and the respondent in the fray. The respondent won with 22,914 votes, while the appellant polled 14,885 votes. The appellant then filed Election Petition No. 190 of 1957, alleging that the respondent held an office of profit as an Insurance Medical Practitioner under the ESIC Scheme, and was hence disqualified under Article 191(1)(a) of the Constitution. The appellant also sought to be declared duly elected under Section 101 of the Representation of the People Act, 1951. The Election Tribunal held that the respondent was disqualified and therefore his election was void. The Tribunal further declared the appellant as duly elected, reasoning that he was the only validly nominated candidate remaining. The High Court, however, reversed this second part, stating that merely because a rival candidate stood disqualified, the appellant could not be automatically declared elected unless he secured the majority of valid votes.
E) LEGAL ISSUES RAISED
i) Whether the respondent held an office of profit under the Government and was hence disqualified under Article 191(1)(a).
ii) Whether, upon disqualification of the returned candidate, the appellant could be declared elected under Section 101 of the Representation of the People Act, 1951.
iii) Whether votes cast in favor of a disqualified candidate could be considered invalid or “thrown away” to give the remaining candidate a notional majority.
F) PETITIONER/ APPELLANT’S ARGUMENTS
i) The counsel for the appellant submitted that the respondent, by being a Government-appointed Insurance Medical Practitioner, held an office of profit under the Bombay Government and was ineligible under Article 191(1)(a) of the Constitution.
They argued that once the Election Tribunal disqualified the respondent, the only remaining valid candidate was the appellant. Consequently, the 22,914 votes cast for the disqualified candidate should be deemed as thrown away. As the appellant had secured the next highest votes (14,885), he should be considered to have received a majority of valid votes under Section 101(a) of the Representation of the People Act, 1951.
Reliance was placed on the doctrine of substantial compliance and constructive majority, wherein votes cast in ignorance of a candidate’s disqualification must not invalidate the mandate of the eligible candidate. The appellant stressed that the public could not have known the respondent’s disqualification at the time of voting, which effectively made their votes ineffective.
G) RESPONDENT’S ARGUMENTS
i) The respondent did not appear before the Supreme Court. Hence, the case was heard ex parte.
However, before the High Court, the respondent had contended that votes cast in his favor were procedurally valid, since his nomination had been scrutinized and accepted by the Returning Officer. Under Section 36(5) of the Representation of the People Act, acceptance of a nomination after scrutiny grants the candidate eligibility to contest, unless and until disqualified by competent authority. Thus, the respondent argued, the votes cast in his favor could not be discarded as invalid or thrown away.
H) RELATED LEGAL PROVISIONS
i) Article 191(1)(a) of the Constitution of India – A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State.
ii) Section 101 of the Representation of the People Act, 1951 – Allows a Tribunal to declare the petitioner as duly elected if he has received a majority of valid votes.
iii) Section 36(8) – Mandates the publication of validly nominated candidates by the Returning Officer.
iv) Rule 57 and 58 of the Conduct of Election Rules – Defines which ballot papers are to be rejected or accepted as valid.
I) JUDGEMENT
a. RATIO DECIDENDI
i) The Supreme Court held that votes cast in favor of the disqualified respondent were not invalid votes merely because he was subsequently found ineligible. Since his nomination was validly accepted by the Returning Officer at the time of election, he was a legitimate candidate for whom votes could be cast. As per Rule 58, all ballots not rejected under Rule 57 must be counted as valid.
The Court ruled that in the absence of pleading or proof that voters knew the disqualification and still voted, votes could not be treated as “thrown away.” The doctrine of thrown-away votes applies only where the votes are knowingly cast for ineligible candidates.
Therefore, as the appellant did not receive a majority of the valid votes, the Tribunal erred in declaring him elected under Section 101.
b. OBITER DICTA
i) The Court remarked that nomination scrutiny is not final, and may later be declared invalid. However, once accepted for election purposes, the candidate becomes a validly nominated one. This practical presumption ensures certainty in elections and protects the sanctity of the ballot.
c. GUIDELINES
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Votes cast for a candidate validly nominated post-scrutiny are valid, even if the candidate is later disqualified.
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Thrown away votes doctrine cannot apply unless voters are proven to have knowledge of the candidate’s disqualification.
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Section 101 requires proof that the petitioner received the majority of valid votes; this cannot be assumed.
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Tribunals must not presume victory merely by disqualification of another candidate; they must examine vote legitimacy.
J) CONCLUSION & COMMENTS
The judgment reinforces the importance of procedural integrity in elections. It prevents arbitrary assumptions of victory based on disqualification alone. The Supreme Court maintained that democratic mandates must derive from actual majority of valid votes, not technical disqualifications alone. The judgment is a robust precedent on the interpretation of Section 101, and has influenced later decisions involving electoral disqualifications.
K) REFERENCES
a. Important Cases Referred
- Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale : Discussed on procedural errors in election and the role of writs of certiorari.
- Vashist Narain Sharma v. Dev Chandra : Addresses office of profit and disqualification.
- Hari Shanker v. Rao Girdhari Lal Chowdhury : Later reinforced procedural sanctity in electoral processes.
b. Important Statutes Referred
- Representation of the People Act, 1951 – Section 36(8), Section 101, Rules 57 & 58
- Constitution of India – Article 191(1)(a)
- Conduct of Election Rules, 1961
