Rekha Rana vs Jai Pal Sharma & Ors

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

placed on the decision of this Court in Ram Sewak Yadav Vs.

Hussain Kamil Kidwai1. Relying on another decision of this

Court in Hari Ram Vs. Hira Singh & Ors.2 learned counsel

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

Nadar Vs. George Mascrene & Ors.3. To buttress his stand

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

this Court in Manphul Singh Vs. Surinder Singh4.

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

Vs. S. Gurcharan Singh Tohra & Ors.5. It was observed that

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 of justice. (See: Hari Ram Vs. Hira Singh & Ors.6)

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.