The judge said the votes polled in favour of a returned candidate could be considered "invalid or thrown away only if there were two candidates in the fray, that too on account of the fact that if the returning officer himself had rejected the nomination of such a candidate on the basis of disqualification, it would have been uncontested election".

Where ever there were more than two contestants, the doctrine of thrown-away votes could be invoked only if it was established that the voters had full knowledge of such disqualification, yet they had voted in the manner they did. Such knowledge should be explicit, he said.

"Courts have assigned the term notoriety of basic fact" for such cases.In cases where the disqualification is not so notorious, votes polled in favour of the returned candidate could not be treated as invalid," the judge said.

If the disqualification of a returned candidate was kept suspended by a stay or injunction granted by a court, the votes polled in favour of such candidates could not be treated as invalid or thrown-away votes.

"This stay order was itself a message sufficient for the electors to presume that such a candidate was entitled to have their votes. Therefore the question of discarding their votes as invalid post-facto would infringe up on the freedom of choice available to the electors in a democratic country," the judge said.