Smt Vimla Sharma vs Ku Sarita Tamrakar and others

Hon''ble Shri Peasant Kumar Mishra, J.—Petitioner''s election as a councilor of Ward No. 30, Municipal Corporation, Durg is under challenge in an election petition which is pending consideration before the court below. In the said election petition, the learned Tribunal by its impugned order dated 6/02/2012 has allowed the election petitioner''s application under Order 13 Rule 10 in part and has summoned the used voter list for recording of polling for the said office of corporator.

Learned counsel for the petitioner has made two fold submissions. Firstly, that secrecy of votes cannot be dented even while trying an election petition and secondly even if it is found that few persons who were already dead but their votes have been polled shall not affect the election unless it is determined as to in whose favour the said votes have been polled, therefore the impugned order deserves to be set aside.

It is settled that when there is contest between free and fair election and the secrecy of votes the later must yield to the former i.e. to say free and fair election is the most sacrosanct object of any election in a democratic set up.

In the matter of Smt. Rekha Rana Vs. Jaipal Sharma and Others, the following has been held in para 9 and 10:

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 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.

The true scope and ambit of the doctrine of "secrecy of ballot" was lucidly elaborated by this Court in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra & Ors., 1980 Supp. SCC 53. 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 lifeblood to parliamentary democracy. If secrecy of ballot 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 coexist 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.

Yet again in the matter of Nayini Narasimha Reddy Vs. Dr. K. Laxman and Others, the following has been held in para 28:

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, 1980 Supp SCC 53 and A. Neelalohithadasan Nadar Vs. George Mascrene and Others, 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.

Thus, in view of the law laid down by the Supreme Court there is no difficulty in holding that the election Tribunal has not committed any illegality by directing production of marked/used voter list.

The second argument needs to be referred only to be rejected.

In para 6 of the impugned order, the learned Tribunal has reproduced issue No. 1 framed in the election petition. It specifically says as to whether on account of inclusion of dead persons in the voter list, the election has been materially affected. When such an issue has been framed for trial, the election Tribunal is required to summon the used voter list. Even otherwise, if ultimately it is not ascertained as to in whose favour the votes have been polled the petitioner need not apprehend about his unseating in the election petition.

No prejudice is caused to the petitioner merely by summoning used voter list when specific issue has been framed. The impugned order does not suffer from any such error of law or jurisdiction warranting interference in exercise of powers under Article 227 of Constitution of India. The petition is dismissed.