TMI Blog1954 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide is whether the Returning Officer was right in rejecting the petitioner's nomination papers. The facts which led him to do so are as follows. The Rules require that each nomination paper should be subscribed by a proposer and a seconder. The petitioner put in four papers. In each case, the proposer and seconder were illiterate and so placed a thumb-mark instead of a signature. But these thumb-marks were not attested . The Returning Officer held that without attestation they are invalid and so rejected them. The main question is whether he was right in so holding. A subsidiary question also arises, namely, whether, assuming attestation to be necessary under the Rules, an omission to obtain the required attestation amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 36(4) of the Representation of the People Act, 1951 (XLIII of 1951). 4. Section 33(1) of the Act requires each candidate to deliver to the Returning Officer....... a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te his name, includes 'mark'. 13. But this is subject to there being nothing repugnant in the subject or context of the Act. In our opinion, the crux of the matter lies there. We have to see from the Act itself whether sign and subscribe mean the same thing and whether they can be taken to include the placing of a mark. The majority decision of the Tribunal holds that sign and subscribe are not used in the same sense in the Act because a special meaning has been given to the word sign and none to the word subscribe , therefore, we must use subscribe in its ordinary meaning; and its ordinary meaning is to sign but not to sign in the special way prescribed by the Act but in the ordinary way; therefore we must look to the General Clauses Act for its ordinary meaning and that shows that when it is used in its ordinary sense it includes the making of a mark. 14. We agree with the learned Chairman of the Tribunal that this is fallacious reasoning. The General Clauses Act does not define the word subscribe any more than the Representation of the People Act, and if it is improper to exclude the special meaning giving to sign in the Representation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 18. It is evident than that wherever the element of signing has to be incorporated into any provision of the Act is must be constructed in the sense set out above. Therefore, whether subscribe is a synonym for sign or whether it means sign plus something else, namely a particular assent, the element of signing has to be present : the schedule places that beyond doubt because it requires certain signatures. We are consequently of opinion that the signing, whenever a signature is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Whether this attaches exaggerated importance to the authorisation is not for us to decide. What is beyond dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases. We are therefore bond to give full effect to this policy. 19. Now if subscribe can mean both signing, properly so called, and the placing of a mark (and it is clear that the word can be used in both senses), then we feel that we must give effect to the general policy of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows : The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. 23. The question therefore is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality. But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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