Nayini
Narasimha Reddy Vs. Dr. K. Laxman & Ors [2006] Insc 284 (5 May 2006)
S.B.
Sinha
[Arising
out of SLP (Civil) No.6785 of 2005] S.B. Sinha, J :
Leave
granted.
Interpretation
of Section 94 of the Representation of the People Act, 1951 (for short, 'the
Act') is in question in this appeal which arises out of a judgment and order
dated 11.03.2005 passed by a learned Single Judge of the High Court of Andhra
Pradesh.
An
election was held in Musheerabad Assembly Constituency on or about 20.04.2004.
For conducting the said election electronic voting machines were used. Whereas
the appellant contested as a candidate of 'Telangana Rashtra Samiti', the first
respondent contested the said election as a candidate of 'Bharatiya Janata
Party'. Whereas the appellant herein polled 53553 votes; the first respondent
polled 53313 votes. The first respondent, thus, lost the election by a margin
of 240 votes. An election petition was filed by the first respondent assailing
the said election before the High Court of Andhra Pradesh at Hyderabad, which was numbered as Election
Petition No. 4 of 2004. In the said election petition, it was inter alia, contended
:
"The
Petitioner submits that P.S. No. 91 was located adjacent to the Central
Election Office of the Petitioner. As already stated several of the party
workers and sympathizers reside in that area. All those persons have cast their
vote in favour of the Petitioner. To establish the fact that the Petitioner
could not have polled zero votes in P.S. No. 91" In the said election
petition names and identity card numbers of various persons mentioned in the
voter list by way of example were mentioned. One of the grounds taken in the
election petition was misalignment of the machine; asserting that whereas both
the parties polled nil votes from a particular booth, the independent
candidates polled a high number of votes.
In the
said election petition an application was filed by the first respondent praying
for issuance of summons to some witnesses apart from those whose names had been
mentioned in the election petition, inter alia, stating :
"I
humbly submit that a list of witnesses that are to be examined on my behalf was
filed on 17.1.2005.
However,
the names of certain of the voters in P.S. No. 91 who had agreed to give evidence
could not be included in the said list of witnesses as there was very strong
likelihood of threat and intimidation. In that view of the matter, a Memo dated
17.1.2005 was filed into Court humbly craving the leave of the Hon'ble Court to produce the said witnesses at a
later date by filing an appropriate application. It is respectfully submitted
that non-disclosure of the names of the said witnesses in the list already
filed was only having regard to their safety. I submit that their evidence is
essential for establishing my case as it is specifically contended by me in the
Election Petition that I could not have secured zero votes in P.S. No. 91,
Polling Station being located in a BJP stronghold and several BJP workers,
sympathizers including the wife, mother, sister-in-law and other female
relatives of my polling agent are listed as voters in P.S. No. 91, which is
exclusively reserved for female voters." A memo was also filed before the
High Court on 17.01.2005, stating :
"The
Petitioner humbly submits that at the time of preparing the Election Petition
certain of the voters in P.S. No.91 had agreed to give evidence. The Petitioner
has been informed by the aforesaid persons that they apprehend threat and
intimidation. In view of this petitioners humbly crave leave of this Honourable
Court not to disclose their names in the list of witnesses having regard to
their safety and prays that the Honourable Court permits production of such
witnesses during the trial as per the calendar fixed by this Honourable Court.
The petitioner undertakes to file the necessary application for permission to
produce the aforesaid witnesses as contemplated under law and procedure. Hence
this Memo." A contention at the hearing of the said application for
issuance of summons as to whether having regard to the provision of Section 94
of the Act, providing for "no witness or other person shall be required to
state for whom he has voted in an election", summons could be issued by
the Appellant before the High Court The said contention was rejected by the
High Court by reason of the impugned judgment.
Mr. Harish
Salve, the learned Senior Counsel appearing on behalf of the appellant,
submitted that as the concept of 'secrecy of votes' goes to the root of
democracy, any summons taken out to compel a witness to depose before the
Court, would be invalid in law, as no witness can be asked to disclose as to in
whose favour he had caste his vote. Strong reliance in this behalf has been
placed on S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Others [(1980)
Supp. SCC 53].
Mr. L.
Nageshwar Rao, the learned Senior Counsel appearing on behalf of the first
respondent, on the other hand, inter alia, contended that the voters merely
enjoy a privilege in terms of Section 94 of the Act; but the same would not
mean that the courts cannot be asked to issue any summons therefor. Drawing our
attention to the fact that in the application for summoning some witnesses, it
was contended that the same was filed in support of the grounds taken in the
election petition and as such it would not be correct to contend that the
summons on the witnesses were sought to be served only for the purpose of
obtaining disclosures from them as to in whose favour they had voted in the
election.
Section
94 of the Act reads as under :
"Secrecy
of voting not to be infringed. No witness or other person shall be required to
state for whom he has voted at an election.
Section
94 does not provide for a total embargo on a party to an election petition to
cite a voter as a witness. What is prohibited is that he cannot be required to
state for whom he had voted at an election.
Secrecy
of ballots indisputably goes to the root of democracy, but the same in our
opinion may not itself be a ground to refuse issue of summons to the witnesses,
Section 94 of the Act merely confers a privilege upon a voter.
He may
even waive his right. It is not in dispute that any person can be produced as a
witness by the parties to an election petition. Witnesses so produced on behalf
of the parties without any summons being issued would be at liberty to disclose
in the court as to in whose favour he had exercised his right of franchise. It is,
therefore, evident that the question as to whether a witness will exercise his
right/privilege conferred in terms of Section 94 of the Act is a matter of
volition.
It is
one thing to say that the civil court while issuing a summon must exercise its
jurisdiction in terms of sub-rule (2) of Rule 1 of Order XVI of the Code of
Civil Procedure but it is another thing to say that the court would refuse to
summon the witness only because a question as regard exercise of the privilege
of the witness may arise. The court may not refuse to exercise its jurisdiction
only on the ground that by reason thereof the privilege of a voter may be
violated.
It is,
therefore, necessary to notice the nature and extent of such a right. Section
94 of the Act merely states that no witness or other person shall be required
to state for whom he has voted at an election. When questioned, Mr. Salve did
not dispute that if a witness is summoned for proving or disproving one or the
other grounds taken in the election petition, or the defence raised by the
elected candidate, summons may be issued and while examining the said witness
in court, a question may also be put to him as to for whom he had voted at an
election. If such a question is put to him, indisputably, he may exercise his
right not to answer the same. The court shall evidently inform him about the
said right but by reason thereof no conclusion can be arrived at that the
jurisdiction of the court in the matter of issuance of summons itself stands
abrogated or restricted. The statute lays down that a witness would not be
required to answer a question to disclose as to in whose favour he had
exercised his right of franchise either before a court of law or before an
authority; but he can exercise the said right only as a witness. He, therefore,
must appear before the court, or before an election tribunal either as a
witness of a party whether summoned or not. It is not in dispute that the
witness may or may not exercise his right. It is furthermore not in dispute
that he may waive the said right. If that be so, it is beyond our comprehension
as to how the right of a party to the lis to summon a witness can be denied
only on the ground that the issuance of summons by the court itself would be violative
of Section 94 of the Act.
Sub
Rule 2 of Rule 1 of Order XVI of the Code of Civil Procedure indisputably
require the party to file an application for obtaining any summons for the
attendance of any person stating therein the purpose therefor; but the same
would not mean that the court would refuse to exercise its jurisdiction only
because one of the purposes disclosed may be that the witness may be asked a
question as to in whose favour he had exercised his right of franchise. The
purpose which is required to be disclosed in such an application for summoning
a witness is only with a view to apprise the court as to whether the evidence
which may be adduced, would be relevant for the purpose of determining the
issues and not for any other purpose.
It may
be true that if a person to whom summons is issued appears in the court, the
Court may require him to give evidence or produce any document in his
possession or power, as envisaged under Order XVI of the Code of Civil
Procedure; but the same again would not mean that if thereby a mere possibility
exists that the secrecy of voting thereby may be infringed, the summons would
not be issued at all. We, for the aforementioned reasons, do not agree with the
contention of Mr. Salve.
In S. Raghbir
Singh Gill (supra), this Court laid down the law in the following terms :
-
"The marginal note of Section
94 says "secrecy of voting not to be infringed". Section 128 of the
Act casts an obligation on every officer, clerk, agent or other person to
maintain and aid in maintaining secrecy of the voting and they shall not
(except for some purpose authorised by or under any law) communicate to any
person any information calculated to violate such secrecy. Rule 23(3) of the
Conduct of Election Rules, 1961 ("Rules" for short) imposes a duty to
conceal the serial number of the ballot paper effectively before it is issued
at election in any local authorities constituency or by Assembly members.
Similarly, Rules 23(5)(a) and (b) of the Rules provide for effectively
maintaining the secrecy of the postal ballot papers in the manner prescribed
therein. Rules 31(2), 38(4), 39(1), (5), (6) & (8), 40(1) second proviso,
38-A(4), 39-A(1) & (2) and similar other rules provide for maintaining
secrecy of ballot. It cannot be gainsaid that various provisions referred to
above ensure secrecy of ballot and even Section 94 has been enacted to relieve
a person from a situation where he may be obliged to divulge for whom he has
voted under testimonial compulsion. Secrecy of ballot can be appropriately
styled as a postulate of constitutional democracy. It enshrines a vital
principle of parliamentary institutions set up under the Constitution.
It subserves
a very vital public interest in that an elector or a voter should be absolutely
free in exercise of his franchise untrammelled by any constraint which includes
constraint as to the disclosure. A remote or distinct possibility that at some
point a voter may under a compulsion of law be forced to disclose for whom he
has voted would act as a positive constraint and check on his freedom to
exercise his franchise in the manner he freely chooses to exercise. Therefore,
it can be said with confidence that this postulate of constitutional democracy
rests on public policy." A question was posed as to whether Section 94 of
the Act creates an absolute prohibition and it was answered in the following
terms:
-
"It was said that Section 94
lends itself open to one construction alone. It is cast in negative language
which usually is treated as absolute. Proceeurther it was said that this
negative provision admits of, no exception and enacts an absolute prohibition.
Provisions cast in negative words arding fe generally treated as absolute
admitting of no exception. But this is not a universal rule.
The
words "negative" and "affirmative" statutes mean nothing in
particular. The question is, what was the intendment? Emphasis is more easily
demonstrated when statute is negative than when it is affirmative but the
question is one of intendment (see Mayor of London v. R.6). If language is open
to two constructions one must ascertain the intendment, the mischief sought to
be remedied and the remedy provided to cure the mischief (see Victoria Sporting
Club Ltd. v. Hannan7). And in such a situation the court must escalate in favour
of that construction which carries out the intendment behind enactment and
accords with reason and fair play.
-
Two possible constructions are,
firstly, that the section casts an absolute prohibition and seals the mouth of
the voter permanently and admits of no exception in which he can divulge his
vote, and secondly, that it is a privilege of the voter to disclose his vote if
he voluntarily chooses to do so but he cannot be compelled by court or any
other authority to divulge his vote. Which of the two constructions advances
the object of enactment?
-
If Section 94 is interpreted to mean
to be a privilege of the voter to divulge or not to divulge how he voted and if
he chooses not to divulge, Section 94 protects him inasmuch as he cannot be
compelled to divulge that information, then it does not stand in conflict with
the other important principle of free and fair elections to sustain parliamentary
democracy. When it is said that no witness or other person shall be required to
state for whom he has voted at an election, it only means that both in the
court when a person is styled as a witness and outside the court when he may be
questioned about how he voted though he would not have the character or the
qualification of a witness yet in either situation he is free to refuse to
answer the question without incurring any penalty or forfeiture. That
guarantees the vital principle behind secrecy of ballot in that the voter would
be able to vote uninhibited by fear. But if he chooses to open his lips of his
own free-will without direct or indirect compulsion and waive the privilege,
nothing prevents him from disclosing how he voted. No provision was brought to
our notice which would expose him to any penalty if a voter voluntarily chooses
to disclose how he voted or for whom he voted. Section 128 has nothing to do
with the voter disclosing for whom he voted. It casts an obligation of secrecy
on those connected with the process of election and not on the voter." The
said decision, therefore, does not support the contention of Mr. Salve.
Secrecy
of ballots was necessary for ensuring free and fair elections; but by reason
thereof the concept of purity of election cannot be given a go by.
This
Court in A. Neelalohithadasan Nadar v. George Mascrene and Others [(1994) Supp.
(2) SCC 619], emphasized on the principle of purity of elections holding that
Section 94 of the Act cannot be pressed into service to suppress a wrong coming
to light and to protect a fraud on the election process. Therein this Court
followed S. Raghbir Singh Gill (supra).
For
the reasons aforementioned, we are of the opinion that there is no merit in
this appeal, which is dismissed accordingly. No costs.
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