Rekha
Rana Vs. Jai Pal Sharma & Ors. [2009] INSC 1197 (10 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5891 OF
2008 SMT. REKHA RANA ... APPELLANT VERSUS
D.K.
JAIN, J.
1.
Challenge in this appeal by special leave is to an interlocutory
order dated 20th July, 2007 passed by the High Court of Punjab and Haryana at
Chandigarh in CM No. 2E of 2007 in Election Petition No. 1 of 2005. By the
impugned order, the High Court has allowed the application preferred by
respondent No.1 (hereinafter referred to as "the election
petitioner") seeking a direction for opening of sealed marked electoral
rolls in order to put the same to a witness summoned by him.
2.
Election to Gharaunda Assembly Constituency was held on 3rd
February, 2005 and the appellant herein was declared as 2 elected by a margin
of 21 votes over the election petitioner, who got the second highest number of
votes. While the appellant secured 25,237 votes, the election petitioner got
25,216 votes. The other eligible contestants, who are all party respondents in
this appeal, got insignificant number of votes.
3.
The election of the appellant was challenged by the election
petitioner, mainly on the ground that the appellant was the beneficiary of a
large number of void votes cast in her favour by impersonation. In nutshell,
the allegation was that: (i) 96 voters had cast their votes twice during the
process of polling;
(ii) 29
votes had been cast in favour of the appellant by way of impersonation, on
behalf of the persons who were not available in the constituency on the date of
polling; (iii) 53 votes had been cast in favour of the appellant by way of
impersonation on behalf of the persons who had died prior to the date of polling;
and (iv) 10 votes had been cast in favour of the appellant by way of
impersonation on behalf of two persons who were serving sentences in jail and
on behalf of eight persons who were abroad on the date of polling. The election
petition, obviously, was contested by the appellant. Upon consideration of
pleadings, six issues were framed. The first 3 three issues viz., (i) whether
the election petition does not disclose a cause of action, if so, its effect?;
(ii) whether the election petition lacks in material facts and is liable to be
dismissed on this ground?; and (iii) whether allegations made in para No.4
raise a triable issue?, were ordered to be treated as "preliminary"
issues. Vide order dated 3rd July, 2006, all the said issues were decided in favour
of the election petitioner and against the appellant.
4.
In the course of recording of evidence of one of the cited
witnesses (PW21), counsel for the election petitioner desired the witness to
make a statement after opening the marked electoral rolls, which were available
in the court but in sealed covers. This was objected to by counsel for the
appellant on the ground that till a specific order was passed by the court in
that behalf, the marked electoral rolls could not be opened, which resulted in
filing of a miscellaneous application, on which the impugned order has been
passed.
5.
Briefly taking note of the evidence already led by the election
petitioner, the High Court has observed in the impugned order that in the
election petition, the election petitioner has expressed the basis of his claim
to the minutest details in 4 terms of the provisions of the Representation of
Peoples Act, 1951 (for short "the Act") as well as the Conduct of
Election Rules, 1961 (for short "the Rules"); the pleadings are
supported by an affidavit in consonance with Rule 94-A of the Rules; the
evidence recorded on behalf of the election petitioner so far is in consonance
with the pleadings and therefore, it is not a case where the election
petitioner is intending to have a roving enquiry so as to fish out material for
raising a challenge to the election of the appellant. The Court felt that the
ultimate truth in respect of clear allegations levelled by the election
petitioner can only be arrived at on the basis of the marked electoral rolls.
Finally, recording its satisfaction that it is a fit case where the prayer made
by the election petitioner for leading evidence on the basis of the marked
electoral rolls deserves to be allowed and by grant of the said prayer, the
norm of "secrecy of ballot" would not be violated, as noted earlier,
the Court has directed the opening of the sealed marked electoral rolls. Hence
the present appeal.
6.
Mr. Vijay Hansaria, learned senior counsel appearing on behalf of
the appellant, submitted that the High Court has committed a serious error of
law in directing de-sealing of the marked 5 electoral rolls inasmuch as the
inspection thereof would result in the infringement of the principle of
"secrecy of ballot", so sacrosanct to the electoral process. It was
argued that a mere assertion in the election petition that a large number of
void votes had been cast in favour of the appellant by resorting to
impersonation was not sufficient to allow inspection of any document in terms
of Rule 93 of the Rules. In support of the proposition that an order for
inspection cannot be granted as a matter of course and the Election Tribunal
must record its satisfaction about the necessity of inspection, which, in the
present case, the High Court has failed to do, reliance was Hussain Kamil
Kidwai1. Relying on another decision of this stressed that inspection of the
electoral rolls is to be allowed very sparingly and only when it is absolutely
essential to determine the issue.
7.
Per contra, Mr. P.S. Patwalia, learned senior counsel appearing on
behalf of the election petitioner, while supporting the impugned order, at the
outset, pointed out that order dated 1 AIR 1964 SC 1249 2 (1984) 2 SCC 36 6 3rd
July, 2006 passed by the High Court, deciding all the three aforenoted
preliminary issues in favour of the election petitioner shows that all material
facts required to be pleaded in an election petition had been clearly stated.
It was submitted that in the said order, the High Court had in very clear terms
observed that in the present case, the election petitioner had disclosed, as
far as possible, all material facts on the basis of which he wished to
authenticate the allegations levelled by him against the appellant; the
allegations levelled in the election petition were clear and precise and will
afford the appellant an adequate opportunity to controvert them. It was thus,
submitted that in view of the aforenoted findings, the satisfaction recorded by
the High Court that inspection of the electoral rolls was essential for
determination of the issue raised by the election petitioner was based on
cogent and adequate material and therefore, no fault could be found therewith.
Asserting that on the facts of the instant case, in the inspection of electoral
rolls there is no element of breach of "secrecy of ballot" principle,
learned counsel submitted that in any event, the interest of "purity of
ballot" must prevail over "secrecy of ballot".
In
support of the proposition, learned counsel relied on a three 7 Judge Bench
decision of this Court in A. Neelalohitadasan that Section 83(1)(a) of the Act
contemplates only giving of a concise statement of the material facts on which
the election petitioner relies, learned counsel pressed in aid the decision of
8.
In the backdrop of the above submissions, the first question for
consideration is as to what exactly is the underlying object, scope and ambit
of the doctrine of "secrecy of ballot" as enshrined in Section 94 of
the Act?
9.
Section 94 of the Act provides that except in a case of voting by
open ballot, no witness or other person shall be required to state for whom he
has voted. The underlying object of the provision is to assure a voter that he
would not be compelled, directly or indirectly, by any authority to disclose as
to for whom he has voted, so that he may vote without fear or favour and is
free from any apprehension of its disclosure against his will from his own
lips. The Section confers a privilege on the voter to protect him both in the
Court when he is styled as a witness and outside the Court when he may be
questioned 3 1994 Supp (2) SCC 619 4 (1973) 2 SCC 599 8 about how he voted.
This precisely is the principle of "secrecy of ballot". The
"secrecy of ballot" has always been the hallmark of the concept of
free and fair election, so very essential in the democratic principles adopted
by our polity. It undoubtedly is an indispensable adjunct of free and fair
elections.
10.
The true scope and ambit of the doctrine of "secrecy of
ballot" was lucidly elaborated by this Court in S. Raghbir Singh Gill any
interpretation of Section 94 of the Act must essentially subserve the purpose
for which it is enacted. The interpretative process must advance the basic
postulate of free and fair election for setting up democratic institution and
not retard it.
Section
94 cannot be interpreted divorced from the constitutional values enshrined in
the Constitution. Expressing the view that "Secrecy of Ballot" as
provided in Section 94 of the Act, was mooted "to ensure free and fair
elections", the Court opined thus:
"If
the very secrecy of ballot instead of ensuring free and fair elections strikes
at the root of the principle of free and fair elections this basic postulate of
democracy would be utilised for undoing free and fair elections which provide
life-blood to parliamentary democracy. If secrecy of ballot 5 1980 Supp. SCC 53
9 instead of ensuring free and fair elections is used, as is done in this case,
to defeat the very public purpose for which it is enacted, to suppress a wrong coming
to light and to protect a fraud on the election process or even to defend a
crime, viz., forgery of ballot papers, this principle of secrecy of ballot will
have to yield to the larger principle of free and fair elections."
Noticing
that the Act is a self contained Code on the subject of elections and
reiterating that "there is one fundamental principle which permeates
through all democratically elected parliamentary institutions, viz., to set
them up by free and fair elections, the Court observed thus:
"The
principle of secrecy of ballot cannot stand aloof or in isolation and in
confrontation to the foundation of free and fair elections, viz., purity of
election. They can co-exist but as stated earlier, where one is used to destroy
the other, the first one must yield to principle of purity of election in
larger public interest. In fact secrecy of ballot, a privilege of the voter, is
not inviolable and may be waived by him as a responsible citizen of this
country to ensure free and fair election and to unravel foul play".
11.
Taking note of the law laid down in Raghbir Singh Gill's case
(supra) with reference to the principle of "secrecy of ballot", in A.
Neelalohitadasan Nadar (supra), this Court observed thus:
"But
this right of the voter is not absolute. It must yield to the principle of
"purity of election" in larger public interest.
The
exercise of extrication of void votes under Section 62(4) of the Act would not
in any manner impinge on the secrecy of ballot especially when void votes are
those which have to be treated as no votes at all. "Secrecy of
ballot" principle pre-supposes a validly cast vote, the sanctity and
sacrosanct of which must in all events be 1 0 preserved. When it is talked of
ensuring free and fair elections it is meant elections held on the fundamental
foundation of purity and the "secrecy of ballot" as an allied vital
principle."
Thus, the
Court reiterated that out of the two competing principles, the "purity of
election" principle must have its way and that the "rule of
secrecy", as contemplated in 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.
12.
Having noted the law on the point, the next question requiring
adjudication is whether on facts at hand, the impugned direction infringes the
principle of "secrecy of ballot" and therefore, it is bad in law?
13.
As already noted above, the case of the election petitioner,
pleaded in the election petition, is that a number of votes had been cast by
impersonating electors, who were either not available in the constituency on
the date of election or had died much prior to the date of election or were
serving jail sentences or were abroad on the relevant date. The factum of
casting of votes by a particular elector could be proved only on the basis of
marked electoral rolls. More so, when the names of the voters who were alleged
to have double voted or have died etc., were specifically mentioned in the
election petition.
1 1 From
a marked electoral rolls, it is only possible to ascertain whether or not a
vote had been cast in the name of a voter from a particular polling booth but
it is never possible to decipher therefrom as to who is the beneficiary of the
said vote as there is no indication on the electoral roll showing for whom the
voter had cast his vote. It is to be borne in mind that the marked electoral
roll is maintained primarily for the purpose of identifying the elector and as
such, we fail to see how its production would impair the "secrecy of
ballot" principle.
Accordingly,
we reject the contention of learned counsel for the appellant on this aspect.
14.
We feel that having regard to the nature of allegation, the stand
of the appellant must also fail when tested on the touchstone of the
"purity of election" principle as enunciated in Raghbir Singh Gill's
case (supra). Sub-Sections (4) and (5) of Section 62 of the Act respectively
bar double voting and voting by a person who is confined in a prison for any
reason and a vote cast by any such person shall be void. As observed in A.
Neelalohitadasan
Nadar's case (supra), the exercise of extrication of void votes under Section
62(4) of the Act would not in any manner impinge on the "secrecy of
ballot", especially 1 2 when void votes are those which have to be treated
as no votes at all. "Secrecy of ballot" principle pre-supposes a
validly cast vote, the sanctity and sacrosanct of which must in all events be
preserved. Therefore, we are in complete agreement with the High Court that on
the pleadings of the parties, a case for inspection of the marked electoral
roll had been made out.
We do not
find any infirmity in the impugned direction warranting our interference.
15.
Before closing, we may also deal with the argument advanced by
learned counsel for the appellant in regard to the scope of Rule 93. The stand
of the appellant is that the election petition lacks sufficient facts on the
basis whereof the court could record the requisite satisfaction as stipulated
in the said Rule before ordering inspection of the Electoral Roll. Rule 93
provides that the documents mentioned in sub-rule (1) thereof shall not be
opened and their contents shall not be inspected by, or produced before any
person or authority except under the orders of the competent court. Clause (d)
of Sub-rule (1) of Rule 93 refers to marked copy of the Electoral Roll. It is
trite that inspection under the said Rule can be allowed only when the
following two conditions are satisfied:
1 3 (i)
The material facts on the basis of which inspection of documents is sought,
must be clearly and specifically pleaded;
and (ii)
The Court must be satisfied on evidence, even if in the form of affidavit, that
it is necessary to allow inspection in the interest It is equally well settled
that the inspection of the documents mentioned in sub-rule (1) cannot be
allowed as a matter of course and a prayer for inspection must be refused by
the Court if it is satisfied that in the garb of inspection, a defeated
candidate is indulging in a roving enquiry in order to fish out materials for
getting the election set aside. Nevertheless, if precise allegations of
material facts are available on record and the Court is satisfied that
inspection of the documents is necessary to determine the issue arising for the
decision in the case as also in the interest of justice, then the Court must
exercise its power under the said rule to allow inspection. Needless to
emphasise that recording of reasons in either of the two situations is a
pre-requisite for exercise of power under the said Rule.
16.
In the instant case, as noted earlier, the election petitioner has
specifically mentioned the names of the persons who had been impersonated or
had double voted. Moreover, while dealing 6 (1984) 2 SCC 36 1 4 rd with the
three preliminary issues, in its order dated 3 July, 2006, the Court had
recorded a categorical finding that the election petitioner had placed on
record sufficient material to substantiate the allegations made in the election
petition. In view of the said finding, we do not find any substance in the
contention of learned counsel that the twin conditions as contemplated in Rule
93 were not satisfied.
17.
In view of the foregoing discussion, we do not find any merit in
the appeal, which is dismissed accordingly with costs.
................................................J. (D.K. JAIN)
................................................J. (R.M. LODHA)
NEW DELHI;
JULY 10, 2009.
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