Section 49P
Despite all the controversies surrounding Vijay’s Sarkar, the one aspect which has caught the attention of the audience and being talked about much is ‘Section 49-P’ in The Conduct of Elections Rules, 1961 which forms the crux of the movie’s plot.
The film shows how people can effectively use the 49-P rule to make sure that they cast their vote even if someone else has voted instead of them.
The Electoral law of India consists of several Legislations, Rules, Model Codes, statutory orders, Regulations,etc., framed by the Parliament and the Government of India from time to time. These electoral laws are executed and brought into force by the Election Commission of India and state election Commissions as per certain norms and conditions. The Conduct of Elections Rules, 1961 is one such electoral law in the form of rules to be followed by the Presiding officers (officials who are vested with the power of controlling all the happenings in a particular polling station) and other concerned officials conducting the electoral process.
Section 49P in The Conduct of Elections Rules, 1961
49P. Tendered votes.—
(1) If a person representing himself to be a particular elector seeks to vote after another person has already voted as such elector, he shall, on satisfactorily answering such questions relating to his identity as the presiding officer may ask, be, instead of being allowed to vote through the balloting unit, supplied with a tendered ballot paper which shall be of such design, and the particulars of which shall be in such language or languages as the Election Commission may specify.
(2) Every such elector shall before being supplied with a tendered ballot paper write his name against the entry relating to him in Form 17B.
(3) On receiving the ballot paper he shall forthwith—
(a) proceed to the voting compartment;
(b) record there his vote on the ballot paper by placing a cross mark ‘X’ with the instrument or article supplied for the purpose on or near the symbol of the candidate for whom he intends to vote;
(c) fold the ballot paper so as to conceal his vote;
(d) show to the presiding officer, if required, the distinguishing mark on the ballot paper;
(e) give it to the presiding officer who shall place it in a cover specially kept for the purpose; and
(f) leave the polling station.
(4) If owing to blindness or physical infirmities, such elector is unable to record his vote without assistance; the presiding officer shall permit him to take with him a companion, subject to the same conditions and after following the same procedure as laid down in rule 49N for recording the vote in accordance with his wishes.
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Section 49P gives the power to a person who 'seeks to vote after another person has already voted as such elector.'
The section states that the person should be allowed to vote after ‘satisfactorily answering questions relating to his identity as the presiding officer may ask.’
When the election officer is approached with the 49-P rule, the voter will not be allowed to vote in the ballot machine and, instead, will be given a slip with the candidates names.For that purpose, the Presiding Officer will make necessary entry in the list of tendered votes (Form 17B appended to the Conduct of Elections Rules, 1961) and obtain the signature or thumb impression of the voter therein. The voter will be supplied with a ballot paper which shall be similar to the ballot paper affixed on the balloting unit of the voting machine and the words ‘Tendered ballot paper’ will be stamped or written on its back. The elector will record his vote on the tendered ballot paper by placing a mark by means of the arrow mark rubber stamp, which is used for marking ballot papers under the traditional marking system of voting. Such tendered ballot paper, after it is marked by the voter in the voting compartment and folded, shall be handed over to the Presiding Officer, who will place it separately in a cover specially kept for the purpose.
Significance of Tendered Ballot Paper:
After the voter marks his choice of candidate, he shall hand over the tendered ballot paper to the Presiding Officer, who will keep it in a separate cover. As per the Conduct of Election Rules, the tendered ballot paper is not to be put in the ballot box with other normal votes, but is to be sealed in a separate cover kept for that designated purpose. According to clause (6) of rule 56 of the Conduct of Election Rules, no cover containing tendered ballot papers shall be opened at the time of the counting of the votes and no such tendered ballot papers shall be counted. The Representation of the People Act, 1951 as well as the above rules are, however, silent on the point as to what use would be made of the tendered ballot papers and how they would affect the result of the election.
However, the Supreme Court has held in the case of Wilfred D'Souza vs Francis Menino Jesus Ferrao (1976), that the tendered votes should be taken into account only when they are likely to affect the outcome of the election, i.e. when the margin of victory is less than the number of tendered votes. Therefore, the Tendered votes play a crucial role only in in some exceptional elections, where the margin of victory is very narrow and that margin being less than the number of tendered votes registered by the concerned Presiding Officer.
In the above case it was held that, the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected, if the court takes into account the tendered ballot papers and excludes from the corresponding votes which were cast by persons other than the genuine voters.
Tendered Ballots are also helpful whenever genuine voters are agitated and resort to violence after finding out that their rightful vote has already been utilised by someone else, by minimizing disputes in the polling station and preventing disruption to voting process. Tendered ballots therefore help in controlling such situations by giving a sense of entitlement and satisfaction of voting for genuine voters, who feel robbed by others voting on their name.
Thus, Section 49P does empower the genuine voters to restore their voting right in case their vote has already been casted by some other person, but the section does have limited effect on elections and comes into action very rarely, whenever the margin of victory is lesser than the number of tendered ballots. And even in those cases, the validity and scrutiny of tendered ballots comes into question only when the losing candidate has suffcient reason to believe the tendered ballots can materially alter the result of that particular election and raises this objection through an Election Petition before the Hon’ble Court.
