Nayani
Narasimha Reddy Vs. Dr. K. Laxman & Others [2006] Insc 287 (5 May 2006)
P.K.
Balasubramanyan
(Arising
out of SLP(C) No.6785 of 2005) P.K. BALASUBRAMANYAN, J.
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I
respectfully agree with the reasoning and conclusion in the judgment just
pronounced by my learned brother.
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Section
94 of the Representation of the People Act, 1951 (for short, the Act) provides
that a voter in an election, when summoned as a witness in an election petition,
cannot be compelled to disclose for whom he has voted. The words, "shall be
required" place a bar on any such compulsion. The Court, as of right or by
authority, cannot compel the voter summoned as a witness, to disclose his
preference. The sub-heading to Section 94 of the Act indicates that the bar is
intended to preserve the secrecy of the ballot.
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The rule
against testimonial compulsion, in a case governed by Section 94 of the Act,
will have to be approached from two angles. The initial question is whether the witness
would have to incriminate himself while giving evidence. The privilege against
self- incrimination in the words of Lord Goddard L.J. is that:
"No
one is bound to answer any question in civil or criminal proceedings if the
answer thereto would in the opinion of the judge have a tendency to expose the
deponent to any criminal charge, penalty or forfeiture which the judge regards
as reasonably likely to be preferred or sued for" (See Blunt v. Park Lane Hotel (1942) 2 K.B. 253 at page 257)
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The privilege
against self-incrimination is to be claimed by the witness. The right becomes
available only after the witness has taken the stand and a question that
offends the privilege is put to him. A prospective witness or some other person
(as in the present case) cannot raise such an issue in anticipation of an apprehended
breach of privilege against self- incrimination. Phipson referring to a number
of authorities on the point states:
"It
may be taken by the witness in refusing to answer a question; the witness
cannot refuse to go into the witness box: he can only claim privilege after he
has gone into the witness box and been sworn and the question put. The court
must determine from the circumstances of the case and the nature of the
evidence the witness is called to give whether there are grounds for the
privilege being invoked and grounds to "apprehend danger." The mere
fact that a party swears that his answer would tend to criminate him is not
conclusive. Once the danger is made apparent great latitude should be allowed
to a witness asked questions in giving evidence in judging for himself of the
effect of any particular question.
The
privilege must, unlike other forms of privilege, be claimed on oath by the
person asserting it on his own behalf, not his solicitor. Nevertheless, it
might be necessary for evidence to be led from others to support the claim. It
is not necessary to explain precisely why the evidence would incriminate, as
that might undermine the privilege." [Phipson on Evidence, 15th Edn., page
564] It is clear that Section 94 of the Act only confers a privilege on the
witness and that he would be at liberty to waive it and give evidence on his
electoral preference.
The
argument based on Section 94, at the instance of the appellant, on the ground
of a perceived threat of self-incrimination of the prospective witness, is
misconceived. The appellant cannot thrust the privilege under Section 94 of the
Act on the prospective witness.
The
appellant cannot deprive the witness of the right to take his own decision in
the matter as and when he takes the witness stand and a question on his
electoral preference is put to him.
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The second
question is whether, the evidence of the witness would breach the secrecy of
the election process. It has been held by this Court in S. Raghbir Singh Gill
v. S. Gurcharan Singh Tohra and others [(1980) Supp. SCC 53] and A. Neelalohithadasan
Nadar v. George Mascrene and others [(1994) Supp. (2) SCC 619] that the purity
of the election process is more important than the privilege conferred by
Section 94 of the Act. This Court has recognized that the secrecy of voting
could be breached to subserve a larger public good, namely, to prevent a fraud
on the election process.
My
learned brother has dealt with this aspect and I am in agreement with him.
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In the present
case, we must also note two incidental aspects that stand in the way of
accepting the plea of the appellant. The arguments based on Section 94 of the
Act are not being raised by the prospective witness but by a third person. The
stage at which the plea is raised i.e. even before the witness has actually
taken the witness stand is also significant. The appellant cannot seek to
prevent the witness from taking the stand. He cannot also seek to curb the
power of the Court to summon the witness.
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In the above
situation, neither the privilege against self-incrimination nor the secrecy of
the election process stand in the way of a voter being summoned as a witness in
an election petition. The power of the Court under Order XIV of the Code of
Civil Procedure, 1908, on application by the parties or suo moto to summon any
person for his attendance in Court and its power to summon any person to
produce any document remains unaffected by Section 94 of the Act. The power of
the Court to summon a witness is one thing, the privilege of a witness not to
answer a question put to him is another. The witness would be free to claim
privilege under Section 94 of the Act and can refuse to reveal for whom he has
voted. However, if he is willing to disclose his electoral preference he is
entitled to do so.
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Hence, I too
would dismiss the appeal.
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