RAGHBLR SINGH GILL v. GURCHARAN SINGH TOHRA & ORS

Citation: [1980] 3 S.C.R. 1302

Court: Supreme Court of India

Bench: A.C. GUPTA, D.A. DESAI

Case summary

115 of the Code of Civit Procedure, requesting the Court that the four tampered postal ballot papers be allowed to be inspected and the concerned witnesses be permitted to be questiQl1ed with- reference to them when they enter the witness box.

Judgment text

"A RAGHBlR SINGH GILL v. GURCHARAN SINGH TOHRA & ORS. May 9, 1980 [A. C. GUPTA AND D. A. DESAI, JJ. ] B Representation of the People Act, 1951, Section 94-Secrecy of voting -Scope of Section 94--Constitution of India Articles 326 & 327--Tampering with records-Applicability of Section 64A of the Act to the present case-Rule 56(2) of the Election Rules, scope of-Section ! OO(d)(l) (iii) of the Act and void elections--Petition for recount, when to be ordered-Non-appearance of election Petitioner in tile witness box, whether vitiates the petition-Interference by Supren1e Court in an election petition. An election petition waS :filed by the respondent against the appellant, a returned oo.

ndidate1 to the council of the State from the constituency of the Punjab Legislative Assembly, on the ground that the result of the election was materially effected (a) by non-compliance with the provisions of the Representation of the People Act and the rules made thereunder; (b) by improper reception of votes in his favour by tampering with the postal ballot papers and by commission of corrupt practice in the interest of ·the al>pellant by it8 agents and also commission of corrnpt practice by obtaining assistance of persons in the service of the Punjab Government. The appellant denied all the allegations and contested the petition. The High Court found that the four baHot papers one each allotted to iP. Ws. (the voters) Nos.

13, 14, 15 and 16 were tampered with in that each the voter had cast his firn preference vote in favour of unsuccessful Akali candidate Gurcharan Singh Tohra and no second preference vote was indicated and each one of the vote was so altered as to appear that each one of them has cast his first prefer· ence vote in favour of the appellant and second preference vote in favour of Gurcharan Singh. The High Court allowed the election petition and declared the unsuccessful Akali candidate Gurcharan Singh Tohra as elected and set aside the election of the appellant. Dismissing the appeal, the Court HELD: (1) Section 94 of the Representation of People Act, 1951 cannot be interpreted or examined in isolation. Its scope, ambit and underlying object must be a! certained in the context in which it finds its place in the Act, and ' further in the context of the fact that the Act itself was enacted in exercise of power conferred by Articles in Part XV titled "Election" in the Constitution with a.

view to achieve the constitutional goal, viz. , setting up of democratic sovereign socialist secular republic. For this a free and fair election, a fountain spring and corner stone of democracy, b~ on universal adult suffrage is the basic. The regulatory procedure for achieving! free and fair election for setting up democratic institution in the country is provided in the Act which includes the cross or performooce indicated by the dumb-sealed lip voter in the ballot paper. That is his right and the trust reposed by the Constitution in him ~ that he will act as a responsible citizen choosing his masters for governing the countiy for the period prescribed by it. Therefore, any interpretation of s. 94 . H 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 democra 1ccords with reason and fairplay. [1318 E-G] Ma,or of London v. Rex, [1848] 3 Q. B.

30; Victoria Sporting Club Ltd. v. Hannam, (1969) 2 WL. R. 454 referred to. (4). The words "shall be required" in s. 94 of the Act, which is cast in negative language indicate an inbuilt element of compulsion. Section 94 carves out an exception to section 132 of the Evidence Act and also section 95 of the Representation· of People Act, 1951. In view of the imperati_ve language of s. 132 of the Evidence Act and also from the constitutional guarantee against self-incrimination as enacted in Article 20(3) of the Constitution a witness when questioned in the witness box relevant to the matter in issue in a proceeding in which he is called as a witness bas to answer the question put to him and cannot escape the obligation to answer the question even if the answer was likely to incriminate him except to the extent the . qualified privilege is extended to him under the proviso to section 132 of Evidence Act. A conspectus of the relevant provisions of the Evidence Act and ss.

93, 94 and 95 of the Representation Act makes it clear that they provide for a procedure, including the procedure for examination of witnesses, their rights and obligations in the trial of an election petition. The expres- -sion ffother person" extends the protection to a forum outside courts. Sec· tion 94, therefore, cannot be singled out as a substantive provision and being unrelated to the procedure prescribed . for trial of election petitioo. [1314 A, B, E, F, 1315 A, F-G, 1316 C-F] Dr. Chhotalal Jivabhai Paiel v. Vadilal Lallubhai Mehta and Ors. (1971) 12 Guj. LR. 850 @ 860 approved. (5) Section 94 of the Representation of the People Act, 1951 can be construed in two possible ways firstly, that ,the section casts an . absolute prohibition and seals the mouth of the voter permanently and ad. mi~ of n? exception in which he can divulge his vote, and secon?

JY, that 1t is a pnvilrge of the voter to disclose his vote if he voluntarily ~hooses to do so but he cannot be compelled by court or any other authority to divulge his. vote. [1318 G·H, 1319 Al If s. 94 is interpreted to mean to be e. privilege of the voter to divulge or not to divulge how he voted and if he chooses not to divulge, s. 94 pro4 tects 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 \Vithout incurring any penalty or forfeiture.

That guarantees the vital principles 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 with· out direct or indirect compulsion and waive the privilege, nothing prevents him from disclosing how he voted as there is no provision in the Act which· would expose him to any penalty. If a voter voluntarily chooses to disclose how he voted or for whom he voted s. 128 of the Representation of People Act 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. [1319 A·D] If the other construction is adopted the mischief thereby perpetrated can· be demonstrably established.

One can then manipulate the vote cast by a voter and poor voter will be helpless and unable to assist the couit by his testimony which is the best direct evidence to establish for whom he voted and what mischief has been played with his vote. [1319 E-F] (6) Free and fair election is not an a priori concept but of cherished constitutional goal oriented value. Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, namely, purity of election. They can co-exist but where one is used to destroy the other, the first one must yield to principle of purity of election J,, in larger public interest.

Jn fact secrecy of ballot, a privilege of the voter, f 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. [1320 F-H, 1321 A] N. P. Ponnuswami v. Returning Officer, Namakkal Constituency & Others, [1952) S. C. R. 218 at 230, referred to. (7). Ordinarily secrecy of ballot has to be guarded, but where secrecy ... ,..... -1 of the ballot itself is sought to be availed of as a protective sheath against disclosure of fraud, forgery or wrongful conduct, it must yield in the larger public interest to ensure purity of free and fa. ir ele'ction. [1322 D-E] Queen v. Beardsall, LR [187'. 5-76] 1 Q. B. 452 quoted with approval. (8) - Section 94 of the Act enacts a qualified privilege in favour of the voter in that no one can compel him to disclose for whom he voted but the RAGHBIR SINGH GILL v.

GURCHARAN SINGH 1305 privilege ends there for if he desires to waive the privilege and volunteers to give information as to for whom he voted, neither s. 94 noi any provision of the Act is violated. No one can prevent him from doing so nor complaint can be entertained from any one including the person who wants to keep the voters mouth sealed as to why he disclosed for whom he voted. .. once the voter chooses to waive the privilege and volunteers to disclose for whom he voted there is no contravention of s. 94 nor any other provision of the Act. and there is no illegality involved in it. [1324 B-E] (9) Normally, where a prohibition enacted is founded on public policy Courts should be slow to apply the doctrine of waiver.

But, if a privilege was· granted for the benefit of an individual, in the instant case for the benefit of voter, even if it was conferred to advance a principle enacted in public interest nonetheless the person for whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right lo 'f. ' waive it. And where a voter waives his privilege not to be compelled to disclose for whom he voted, if he wants to nm ! he gamut of risk of disclosure it does not violate any other principle because it was enacted lo help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. (1321 E-G] Basheshar Nath v. lhe Commissioner of Income. tax, Delhi & Rajastha. n and Another, [1959] Suppl. I S. C. R. 528 at 610; Bthram Khurshed Pesikaka v. The State of Bombay, (1955] I S. C. R. 613 at 654 applied. (10) A recount of votes cannot be ordered just for the asking. A peti: tion for recount after inspection of some bB.

Ilot papers must contain an ade· quate statentent of material facts on which the petitioner relies in support of his case. The Tribunal must be prima facle satisfied that in order to decide the dispute end to do complete justice between the parties an inspection of the ballot papers is necessary. Only on the special facts of a given case sample inspection may be ordered to -lend fu,rther assurance to the prima facle satisfaction of the Court regRrding the truth of the allegations- Jl}ade for a recount and not for the purpose of fishing out materisls for declaring an election void. [1324 H, 1325 A-C] litendra Bahadur Singh v. Krishna Behari & Ors. , (1970] I S. C. R. 852; .. Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors. [1973] 2 S. C. R.. 920; Bhabhi v. Sheo Govind & Ors. , (1975] Suppl. S. C. R. 202; Ram Autar Singh Bhadouria v. Ram Gopa/ Singh & Ors. , (1976] I S. C. R. 191; and R. Narayanan v. S. Semma/ai & Ors. [1980] I S. C. R. 511 followed.

(11) In an election appeal under s. 116A of the Act the Supreme Court does not ordinarily interfere' with the finding of facts recorded by the High Court particularly when the High Court comes to, a conclusion on app· reciation of all material evidence placed before it As a corollary this Court would be slow to interfere with such findings of facts based on appraisal of evidence unless there. is something radically wrong with the app~ roach of the learned judge trying the election petition. [1330 C-EJ Ram/i Lal v. Ram Babu Maheshwari & Anr. A. IR 1970 SC 2075; D. Gopala Reddy v. S. Bai Talpalikar & Ors. (1972) 39 Election Law Reports 305 (SC) and Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors. [1973] 2. S. C. R. 920, applied. 24-610SCI /80 [1980] 3 S. C. R. (12) A petition for a recount on the allegation of n1iscount or error in counting is based upon not specific allegation of miscounting but errors which may indicate a miscount and recount becomes necessary.

When it is alleged that postal ballot papers were . tampered with, the implication in law is that those postal ballot papers have been wrongly received i in fa. vour of a candidate· not entitled to the same and improperly refused in favour of the candidate entitle. :J. to the same and therefore there is a miscount and a recount is necessary, In the very nature of things the "t allegation can be not on each specific instance of an error of counting· or miscount but broad ~llegations' indicating error in counting or miscount necessitating a recount. In the instant case, the discretion used regarding the necessity of inspection of ballot papers is amply justified. Further it is established that the four ballot papers have been tampered with. [1326 C·F, 1333 CJ (13 To avail of the procedure prescribed in s. 64A of the Act the con- y ditions prescribed in that section must be satisfied. Section 64A envisages \ situation where tampering, damaging, destruction or loss of ballo!.

papers used at a. polling station is on such a large scale that the result of the poll at the polling station C{lnDOt be ascertained. But s. 64A is not attracted in the facts and circumstances of this case. The four ballot papers sent from different jails and . received as postal ballot papers are I) sh(. lWL. to have been tampered with. The voteS cast by the ballot papers can be succinctly ascertained and have in fact been ascertained. [1333 G-H, 1334 A] (14) The decision in Jagannath Rao v. Raj Kishore & Ors. AIR [1972] SC 447 does niJt purport to lay down that as soon as it is shown that some ballot papers have been tampered "1th, the Court has merely to chart an easy course of rejecting these ballot papers. Such an approach, apart from anything else, would be a premium on unfair election practice.

Where· ~ voting is by the system of proportional representation by means of the single transferable vote, if a tampering as of the nature indulged into in this case is brought to light, the necessity of rejecting such ballot papers as invalid would give an unfair advantage to the very person who indnl· ged into such pr3. ctice. When the Returning Officer did not reject the ballot paper as being invalid, under Rule 56(2) of the Election Rules, 1961, once tampering is held proved if the circumstances permit and evidence of unquestionable character is available it would be perfectly ( legitimate for the CoWt in an election petition to ascertain for whom the . vote was cast before it was tampered with and if it can be ascertained as valid vote it must be accepted as such. Any other approach has t an inbuilt tendency to give an unfair advantage either to the candidate who himself might have indulged in tampering or someone who must haVe acted . f for bis benefit. [1334 C-G] (15).

The expression "improper reception" and "improper refusal" of vote must carry out the purpose underlying the provision contained in s. 100 of the R. P. Act. Section 100(1) (d)(iii) comprehends a situation where the result of an election in so far as it concerns a returned candidate has been materially afiect:ed by improper reception, or improper refusal of any vote o. tile recept;on of. any vote which is yoid. The adjeotive 'im· proper' qualifies not only the wo·rd 'reception' but also the word ~refusal'. When a vote is received by the returning officer at RAGHl! lll SINGH GILL v. GURCHARAN SINGH (Desai, !. ) 1307 tire time of counting it implies two things, that it is not only received as a valid vote but that the valid vote is cast in favour of one of the contesting candidates at the election. Similarly, when it is said that 4 .

there is improper refusal of any vote it implies again two things, namely, a vote which ought to have been accepted as valid vote has been · in1properly refused as an invalid vote, or there is an improper refusal to accept the vote in favour of a particular candidate. Therefore, an improper reception of any vote or an improper refusal of any vote implies not only reception or refusal of a vote contended to be invalid or valid, as the case may be, but subsequent reception in favour of any contesting candidate at the election which would simultaneously show the vote being refused in counting to . any other candidate at the election. The expression 'refusal' implies 'refuse to accept' and the exp~ion 'reception' implies 'refuse to reject'. [1335 D-HJ y·- (16) The wide comprehensive panoram~ of s. 100 of the Representation ' of People Act, 1951 embraces within its fold, all conceivable infirmities which may be urged for voiding an election.

To construe otherwise will have the election petitioners without a remedy. It would mean that even though one can indulge into forgery what is tampering of ballot papers, if not forgery-and get away with it. [1337 D-H] M-ohinder Singh Gill v. The Chief Election Conzmissioner, New· Delhi & Ors. , [1978] 2 S. C. R. 272 followed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1035 of 1978. Appeal under Section 116-A of the Representation of People Act 1951 from the Judgment and Order dated the 5th June 1978 of the ~ Punjab and Haryana High Court in Election Petition No. 1 of 1976. U. R. Lalit, O. P. Sharma, Vivek Seth and Miss Anil Katyar for the Appellant. Hardev Singh, R. S. Sodhi, M. S. Gupta and Miss Manisha Gupta for Respondents. The Judgment of the Court was delivered by '\ DESAI, J. -Purity of election and secrecy. ~f ballot, two central pillars supporting the edifice .

of Parliamentary democracy envisioned in the Constitution stand in confrontation with each other or are complimentary to each other, present the core problem in this appeal. First to the factual matrix. Punjab Legislative Assembly formed a constituency for electing members to the Council of States. On March 3, 1976, a notificatio,n was issued· calling upon the memb. ers t--r of Punjab Legislative Assembly to elect three members to the Council of States. The election programme was : March 10, 1976, wa& prescribed as the last date for filing nominations; the scrutiny of the nominations was to be made on March 11, 1976; March 13, 197. 6, q: Wiil! the last date by which it was permissible to withdraw Jrom the e)ection; in the event of contest, poll was to take place on Mareh 27, I 1976; counting was to be done on the same day. Respondent 4 Smt. Amarjit Kaur and respondent 5 Sat Pal Mittal were nominated as candidates of the political party described as Indian National Congress.

Appellant Sardar Raghbir Singh Gill claimed to be an inde- J.. pendent candidate. Respondent 1 Gurcharan Singh Tohra was a nominee of the Akali Party. As there were three seats and four candidates, poll was conducted on March 27, 1976. The voting was in accordance with ihe system of proportional representation by means of the single transferable vote. Counting took place on th~ same day after the poll closed at the prescribed hour. Two candidates of the Indian National Congress, Smt. Amarjit Kaur and 5at Pal Mittal secured 29 and 27 first pred'erence votes respectively. Appellant secured 23 ftrst preference votes. Responden! 1, the Aka1i nomin~ also seoured 23 first preference votes. The quo;a was 25. 51 votes. Accordingly, Smt. Amarjit Kaur and Sat Pal Mittal who had secured first preference votes in e;xcess of the ascertained quota were declared elected. The. surplus first preference votes according to ,the second preference votes to the tune of 4.

81 votes were added to the first preference votes polled by the appellant and he was declared elected to the third seat Respondents1 Z and 3 two sitting members of Punjab Legislative Assembly and, therefore, eligible electors, filed an election petition on May 10, 1976, challenging the election of' the present appellant, the independent candidate who was declared elected to the third Seat, inter alia, contending that the result of the electiOil of the present appellant has been materially affected (i) by non- ~ compliance with the provisions of the Representation of the People Act, 1951, and the Rules made thereunder; (ii) by improper reception of votes in favour of respondent 1, and (iii) by commission of corrupt practice in the interest of appellant by hisi agent as also commission of corrupt practice by obtaining assistance of persons in the service of the Punjab Government.

The allegation was that Giani Zail Sin~ was the Chief Minister of Punjab at the relevant time and it was "If' who had put up the appellant as a candidate even though the mem~s of the Assembly belonging to Indian National Congress computing their voting strength in the Assembly had only fieldeii two candidates , l Smt. Amarjit Kaur and Sat Pal Mittal. The Chief Minister Giani Zall Singh in order to snatch the third seat not legitimately available, fielded appellant as his candidate and to secure his \)lection, power of office was abused. Seven members of Assembly belonging to Akali Party T"~ and a lone Jan Sangh ML A. were detained under the Maintenance of Internal Security Act, the detenns included P. W. 16 S. Parkash Singh Badal, detained in Tihar central Jail at Delhi, P. W. 15, S. Jaswinder Singh Brar, and P. W. 15 S. Jagdev Singh Talwandi, detained in Central Jail at Patiala, S. Basant Singh Khalsa, detained in Jail at RAGHBIR SINGH GILLY.

GURCHARAN SINGH (Desai, ],) 1309 Nabha, P. W. 13 S. Surjit Singh Barnala,. detained in Jail at Jullwidur, S. Gurbachan Singh and S. Kundan Singh, Patang, detained in Jail at -""' Sangrur, all belonging to Akali Party and Dr. Baldev Prakash belonging to Jan Sangh. These detenus applied for postal ballots with a t view to exercising their right of franchise and they did in fact exercise 'tlleir franchise. In course of counting it transpired that four postal ballot papers were tampered with and the tampering indicated that the first preference vote in favour ofrespondent 1, Gurcharan Singh Tohni, the Akali candidate was altered to show second preference vote as also to indicate . a first preference vote. in favour of the, appellant. This w:is noticed by PW. j S. Manjit Singh Khera who was the counting agent ·;,,,. ;of respondent 1. It was alleged that Giani Zail Singh abused his ? \power as Chief Minister by bringing pressure upon S.

Partap, Sfugh, the Returning Officer, Sardar Tirth Singh Sobti, a Sub-Po8t Master and the Superintendents of Jails at Sangrur, Patiala and Nabha, fQr facilitating the. tampering and thereby four additional first preference vote! ; were wrongly received in favour of the appellant to which he was not entitled and the valid votes in favour of first respondent were denied. to him by improper refusal and that it has directly and materially . affected the result of the election. It was, however, stated in the petition that though the tampering of four ballot papers wa8 self-evident, they, the petitioners were not in a positionl to State ~ exact method adopted in this behalf. The allegati0n of corrup~ practice was that Y with the assistance of Chief Minister Giani Zall Singh official machinery was pressurised and utilised to ge~ the appellant elected.

To· the election petition the returned cindidite, Dimily, Hliii pnient appellant whose election was called in queition, two other returned candidate! I and the defeated Akali candidate were impleaded as respondents. . The returned candidate, the present appellant contested the peti- ';J! on, inter alia'. contending th~t the whole petition is based on conjec- 'Tbres and surmises. The allegation of corrupt practice wu firmly denied. He also denied his relationship with Giani Zai1 Singh and further denied that he was a candidate put up by Giani Zall Singh. Any allegation of ta111pering was denied and it wa$ cootended that Akllli Party pr~sented a picture oll a house divided and, therefore,. the sumrtso made . that members belonging to the Akali Party would en block vote . for the Akali candidate is not justified.

It was contended that th" peti- ~oners as admitted by them in the petition were/ not in a position to state the exact method and procelis adopted by the Returiiing Officer and his accomplices in tampering with the postal ballots, and, therefore, R th~ cai:e put forth in the petition is a figment of imagination, devoid of particulars and the petition mliable to be thrown out Ori this ground. [1980] 3 s. c. R. The le. arned Judge of the High Court before whom the petition came up for hearing framed as many as seven issues. One issue was whether a case for inspection of ballot papers is made out? Tbe central issue was whether four bl! Jlot papers were unauthorisedly ~ tampered with after the voters thereof had cast their first preference.

on them in favour of Akali candidate, and if so, whether they were ~ hereby converted in favoor of the returned candidate by changing the figure I placed against the name of the Akali candidate into figure Il and further placing the figure I in favour of the returned candidate? , On the finding of this issue a further issue had to be answered whether the four votes were improperly received ~nd counted in favour of the returned candidate and improperly refused t . the right created by the statute is sorely for the benefit-of the individual, he can waive it. It was, however, said that even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent conditions should '· be applied before the doctrine is invoked or applied. In Behram 2 Khurshed Pesikaka v.

The State of Bombay,( ) it was observed that fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as· a ma)ter of public policy and the doctrine of waiver can have no application to provisious of law which have been enacted as a matter of constitutional policy. Undoubtedly, where a prohibition enacted. is founded on public rolicy r Courts should be slow to apply the doctrine of waiver but this approach overlooks the fact that if a privilege was granted for the benefit of at_1 individual, in the instant case for the benefit of voter, even if it was coriferred to advance a principle encated in public interest nonetheleiis the person for whose benefit the privilege was enacted has a right to waive it because th. e very concept of privilege inheres a ·right to waive . t.

And w)]ere a voter waives his privilege not to be compelled to dislose for whom he voted, if he wants to run the gamut of risk disclosure 'it does not violate any other principle because it was enacted to help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The inescapable conclusion is that s. 94 enacts a qualified privilege in favour of a voter not to be compelled to disclose for whom he voted but if he chooses to f"'T volunteer the information s. 94 is not violated. Having dealt with the question of construction of s. 94 of the Act on first principle, a reference to the precedents to which our attention (I) [1959] Suppl. I SCR 528 at 610. (2) [1955] I SCR 613 at 654. 25--610SCI/80 was drawn would buttrss our conclusion. In the Queen v.

Beardsall,( ') at a trial of indictment against a Deputy Returning Officer, for offence under the Ballot Act, 1872, charging hlm with having fraudu• lently placed papers purporting to be, but to his knowledge not being, ,l. ballot papers in the ballot box, Blackburn, J. allowed the counterfoils and marked register produced. under the aforesaid order to be given in l evidence, and the face of the voting papers to be inspected so as to show how the votes appeared to have been given. Upholding this order, Kelly, C. B. , observed that, "the legislature has no doubt provided ~ that secrecy shall be preserved with respect to ballot papers and all documents connected with respect to ballot papers and all documents connected with what is now made a secret mode of election. But this-\,/ secrecy is subjec£ to a condition e5sential to the due administration. '°"\ of justice and the prevention of fraud, forgery, and other illegal acts affecting the purity and legality of elections. " Lush, J.

, observed as under: "It was argued that secrecy was the only object of the Ballot Act, but I do not agree to the proposition. . Secrecy was one object, the other was to secure purity of election; and it is difficult to say which is most important". It thus clearly transpires that ordinarily secrecy of ballot has to be guarded but where secrecy of the ballot itself is sought to be availed of as a protective sheath against disclosure of fraud, forgery or wrong· ful conduct, it must yield in the larger public interest to ensure purity of free and fair election. Schofield in "Parliamentary Elections'', 3rd Edn. , p. 453, states the law as under : "Evidence may be called but witnesses must not be asked for whom they voted for no person who has voted at the election shall in any legal proceeding to question the { election or return be required to state for whom he voted.

There would appear to be no objection to the witness volu'n- · teering this information particularly in a case of personation". It was however, said that Schofield's statement of law should not be accepted because this proposition is not noted in Halsbury's Laws of England, 4th Edn. , Vol. 1? , p. 494, p! ll'a 909, wherein on the ques- Tl tion of secrecy of vote the following statement of law is to be found: "A witness may not be required to disclose for whom he has voted and it is only in those cases where he has (I) LR [1875-76] l. Q. B. 452. RAGHBIR SINGH GILL v. GURCBARAN SINGH (Desai, !. ) 1323 publicly held himself out as belonging to some political party that he may be asked to which party he belongs. _... The Court may not discover how a person has voted untill it has been proved that he voted and his vote has been decf Jared to be void". A passage at page 21 Oin Parker's Conduct of Parliamentary B. eclions, 1970 Edn.

, was read out to us in support of the contention that there are certain provisions in an election law containing an absolute enactment which must be obeyed strictly and a breach of which will render the vote void. There is no reference to a provision similar to ".. :·one found in s. 94 of the Act nor any decision quoted to show its scope J'and ambit. . '1 In American Jurisprudence, 2d Vol. 26, page 166, paras 347 and 348 it is stated as under : "As an incident of the secret ballot system and in order to preserve the purity and independence of the exercise of the elective franchise, the rule is well established that a legal and honest voter is privileged from testifying as to the candidate for whom he cast his vote . . . . . . the privilege of a legal voter to refuse to testify for whom he cast his ballot may be waived by the voter but since the privilege is personal to the voter, it may be waived only by him". In Corpus Juris Secundum, Vol.

29, pam 278, it is stated iii under: ' In the absence of proof or claim of fraud, illegality, or irregularity, parol evidence is not admissible to cq__ntradict a ballot, and a voter will not be permitted to testify that be voted in a manner different from that shown by his ballot. However, a voter may testify that another ballot has been substituted for the one he cast, or that his ballot has been . changed since it was cast". In para 281 in the same volume it is stated as un~ : ·"The policy of the law is to protect legal voters in the secrecy of the ballot. Accordihgly a legal voter cannot be compelled to disclose for whom he voted, in . the absence of a showing of fraud on the part of the election officers sufficient to invalidate the returns; and it has been held that the same considerations of public policy which reHeve the voter himself from bemg compelled to testify for whom he voted should preverrt other proof of that fact''. "Exemption a personal privilege.

-By the weight of authority the exemption from obligation to disclose the character of his vote can . be claimed only by the voter himself, and, if he sees fit to answer the question, there can be ho objection to the testimony, but, according to some authorities, in an election contest voters cannot be permitted ' to testify at all as to how they voted". Having anxiously examined the matter both on principle and precedent, there is no. gainsaying the fact that s. 94 of the Act enacts a privilege in favour of the voter in that no one can compel him to disclose for whom he voted but the privilege ends there for if he · .. / desires to waive the privilege and volunteers to give information as " to for whom he voted, neither s. 94 nor any provision of the Act is violated. No one can prevent him from doing so nor a complaint can be entertained from a'ny one including the person who wants to keep the voter's mouth sealed as to why he disclosed for whom he voted.

The learned Judge was, therefore, justified in permitting the four voters who were examined as witnesses to waive the privilege and then disclose for whom each one of them voted. If any one of them wanted to claim the privilege, neither the Court nor any other authority could have compelled him to open his mouth a:nd he could have kept his lips sealed but there the embargo placed by s. 94 ends. Once the voter chooses to waive the privilege and volunteers to disclose for whom he voted there is no contravention of s. 94 nor any other provision of the Act and there is no illegality involved. in it. It was, however, contended that apart from the prohibition enacted in s.. 94 ensuring secrecy of ballot, the order dated October 25, 1977, is erroneous and unsustainable on facts disclosed in the{ petition and the evidence recorded till the date of the order. · It was contended that the allegations in this behalf in the election peti· ( tion are vague and wholly· devoid of particulars.

Says, Mr. Mridul, that virtually the petitioners themselves confess this pooition when they say that they were hardly in a position to make any specific assertion, a fact demonstrably established, that the election petitioners were not in a position to state the exact method and process adopted by the returning officer and his associates in tampering with the postal ballot. Undoubtedly, in para 18 of the petition the election petitioners have said that they are not in a position to state the exact method and process adopted by the returning officers and his accomplices to tamper with the postal ballots. This is in substance a petition for recount. True, recount carinot be ordered just for the asking. A petition for recount after RAGHBIR SINGH GILL v. GURCHARAN SINGH (Desai, !.

) 1325 ' inspection of the ballot papers ~ntain 'an adeqnate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie s~tisfied that in order to decide the dispute a'nd to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as f to enable the applicant to indulge in a roving inquiry with a view to :fishing out materials for declaring the election void. Only on the special facts of a given case sample inspecting may be ordered to lend • further assurance to the' prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials. This is well settled by a catena of '--. / decisions. (see Jitendra Bahadur Singh v. Krishna Behan & Ors. ,(') 2 .? Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors,,( ) Bhabhi 3 v.

Sheo Govind & Ors. ,( ) Ram Autar Singh Bhadauria v. Ram Gopal 4 Singh & Ors. ,( ) and R. Narayanan v. S. Semmalai & Ors('). The petitioners aver in the petition that the returning officer in collaboration and conspiracy with the Superintendents of Jails and under the directions of Giani zail Singh the then Chief Minister, to help the present appellant, tampered with the postal ballots and changed four of them to this extent that they should be considered and counted as first preference votes for the appellant instead of respondent 1, the unsuccessful candidate. There is also an assertion that E' l>' when the postal ballot papers were sorted out for fue purpose of counting, M. S. Khera. P. W. 2, the counting agent of respondent 1 found to his dismay fuat the four postal ballot, papers were tampered with a'nd the manner in which fue tampering appeared to have been done has also been set out in the petition.

It was also stated that there was overwriting and there were interpolations in the baL! ot papers F' masmuch as what was originally first preference vote was made to \ . appear second preference and the first preference vote was. indicated ~ in favour of the appellant. It was alleged that the comiti'ng agent M. S. Khera and his companions objected to receiving the four tampered postal ballot papers in favour of the appellant. This shows '\ that there were sufficient allegations in fue election petition about the tampering of four postal ballot papers. Undoubtedly, the method employed in tampering being hatched i'n and carried out in secrecy ,. _,. - may not be known or may not come to light but the result of tam- (! ) [1970] I SCR 852. (2) [19731 2 SCR 920. (3) [1975] Suppl. SCR 202. (4) [1976] I SCR 191. (5) [1980] I SCR 571. pering became manifest as soon as the postal ballot papers were taken out of the envelopes and sorted out for counting.

Conpled ( with this one must remember that eight electors being members of the ·Legislative Assembly had voted by postal ballot. Those who opted for postal ballot papers were detenus detained under the Maintenance of Internal Secrnity Act. Who they were was known to every one inasmnch as seven of them belonged to Akali Party and one was a member of Jan Sangh. Their political alignments were known. Therefore, when the postal ballot papers were opened and the counting agent of Akali candidate respondent 1 found that four " out of eight postal ballot papers appeared to have been tampered with it was easy for him to deduce that the four voters belonging to Akali Party, if the ballot disclosed a true state of affairs, had cast X their votes in favour of the appellant, a candidate opposed to. the · official Akali candidate.

Simultaneously a mere glance at those tampered postal ballot papers would show that the tampering was rather crude and no expertise was necessary to form an opinion that these four post&! ballot papers were tampered. And these allegations have been made in the petition. A petition for a recount on the allega· tion of miscount or error in counting is based upon not specific allegation of miscounting but errors which ml. ly indicate a misconduct and recount becomes necessary. When it is alleged that postal ballot papers were tampered with, the implication in Jaw is that those postal ballot papers have been wrongly received in favour of a candidate not entitled to the same and improperly refused in favour of the candidate entitled to the same, and this is a miscount and recount is necessary.

In the very nature of things the allegation can be not on each specific instance of an error of counting or miscount but broad allegations indicating error in counting or miscount necessitating a recount. Coupled with the allegation in the petition, when the election { petitioner8· started examining the witnesses on their behalf, Shri M.. S. Khera, P. W. 2 a practising Advocate and counting agent for the ( unsuccessful Akali candidate gave evidence to the effect that when . eight envelopes containing postal ballot papers were taken up for " counting two of them were found properly sealed and sew! of the Superintendent of the Jail was decipherable. However, the wax seal on the other six envelopes containing ballot papers was not decipherable at all. He said that these six envelopes containing ballot papers did not have the seal of the Superintend~! of Jail from where they were despatched. His evidence was further to the effect that after the small inner envelopes containi!

ng the ballot papers were opened and the ballot papers were put down on the table with their faces in reverse RAGHBm SINGH GILL v GURCHARAN SINGH (Desai, ]. ) 13 2 7 so that the agents and candidates could not see as to for whom the vote had been cast, he kept a close watch. Therealter the ballot box was opened, and folded ballot papers were unfolded and mixed up ,with the postal ballot papers. Thereafter, according to him all these ballot papers were placed in different trays eanna_rked for the candidates and counted with regard to their preferences. Then comes the very important statement which may be extracted : "When this was done, I noticed that the bundle of the returned candidate S. Raghbir Singh contained four postal ballot papers and these had first preference in favour of the returned candidate S. Raghbir Singh and second preference in favour of S. Gurcharan Singh Tobra. The reason only which I could detect this was that the pencil used for marking first preference in the.

booth was a red one whilst the postal ballots on the other hand had been marked with blue ink! and one of them had been marked with red-ball-point. It was, therefore, that I could detect that these were postal ballots. My suspicions were at once aroused because I could not conceive that the postal ballots which were from the ·leaders of the Akali Party could be of second preference for Mr. G. S. Tohra. I then asked the Returning Officer to recount the ballot papers of the returned candidate as I seriously doubted the counting thereof. He did so and in the process of this recount I particufarly kept a sharp eye on these four ballot papers. Indeed I asked him to count the ballot papers for the third time a'nd he . complied with my request as my object was to see as minutely and as surely as possible these ballot papers. In the process aforesaid I found that two out of.

the ' ' four postal ballot papers which were marked with '' a blue ink were heavily overwritten and especially so as ' regards the marking for the second preference. · The third b! lllot paper was not as heavily overwritten but it was clear that this also had been so done twice or thrice. As regards the fourth ballot paper marked with a red ballpoint the second preference marking showed a difference >n colour of the two lines and as distinguished from the other three which were marked in the Roman whilst this contained two parallel lines for two. From these observations at least I was convinced that the postal ballot papers had been ·tampered. The aforesaid tampe- I \ ring was in the column opposite the name of s. Gurcharan Singh Tohra. " If the allegations in the petJt1on coupled with the evidence of ,lo.. PW. 2, M. S. Khera, the counting agent is evaluated, what further proof was needed for inspectio'n of ballot papers?

His cross-examination on the relevant point, to say the least, is inept and the witness has remained unshaken. It was, however, contended that evidence of M. S. Khera should not be accepted because he is an interested and partisan witness and his evidence lacked credibility because there was no contemporaneous follow up action taken by him by rf! ising objection i'n writing and as a practising advocate he was expected to know that such a serious mal-practice when-'A'I. noticed by him sllould have found its place in a contempora- · neons written record. It was said that he was aware of the necessity of ra1smg a written objection because on an earlier occasion he in fact did so when voter Sbri Kamai] Singh Marhari had shown his ballot paper to Shri Prithi Pal Singh which is impermissible. It was also said thlat election petitioners after making serious allegations in the petition, shunned the witness box and, therefore, the case should be rejected. The criticism is not well merited.

Non-appearance of electio'n petitioners in the witness box has to be appreciated in the background of the nature of allegations. And let it be noted that the appellant against whom various allegations were made equally shied off from the witness box. Further, in view of the nature of allegations, P. W. 2 M. S. Khera and the four voters would provide the best evidence. The accusation that P. W. 2 M. S. Khera is not an independent witness may be appreciated in the light of the fact that in an election fought on party lines tire. election agent, the polling agent a'nd the counting agent of any candidate would ordinarily be one who shares his political philosophy and ( owes allegiance to the party discipline. The undisputed fact that ' be was a counting agent establishes his presence· at the relevant time.

After postal ballot papers were taken out and mixed up and then unfolded for the purpose of counting, if the counting agent keeps a watchful eye he is bound to notice the glaring tampering. He did in fact lodge an oral protest and at his instance recount was ordered thrice. His failure to prepare and submit a contemporaneous "ritten record of what he bad noti}ced cannot detract from his evidence. And a writte'n contemporaneous protest at the counting is not a coudition precedent to filing an election petition for recount. It thus clearly transpQ:es that the allegation in the petition coupled with the evidence of RAGHBIR SINGH GILL v. GURCHARAN SINGH (Desai,!. ) 1329 M. S. Khera would rather satisfy the test laid down by this Court, namely that the learned judge had material to be prima jacie satisfied that in order to decide the dispute and to do complete justice. between the parties an inspection of ballot papers was necessary. The discretion used in this behalf is amply justified.

Once the inspection of ballot papers was permitted and the ' four voters PW. 13 S. S. Barnala, P. W. 14 Jagdev Singh Talwandi, P. W. 15 Jaswind~r Singh Brar and P. W. 16 Prakash Singh Badal were examined and each one was shown his ballot paper and each one volunteered to give information as to for whom be voted, it became crystal clear that their ballot papers were tampered with. In an election of a member to Council of States; the election is by' a system of proportional respresentation by means of the single transferable vote. Each voter had to show his preference by marking hls first, second preference. etc. and he may mark as many preferences as there are candidates. But no candidate can mark . his first preference for more than one candidate which if done would render his vote invalid (vide Rule 73 of the Rules).

The four voters in their ,'respective evidence emphatically stated that each one ~ them cast his first preference vote in favour of the Akali candidate respondent 1 and did not cast second preference vo~e in favour of any one else. Their ballot papers show that their first preference is in favour of the appel! ant a candidate opposed to the Akali candidate and the second preference is in favour of the Akali candidate. This evidence was objected to on two grounds, firstly , that it violates secrecy of ballot, and secondly, that the witnesses answered the question and there is nothing to show that they volunteered the information. When · it is said that no witness would be required to disclose for whom he has voted it does not inean that he can'not be questioned but it merely implies a privilege of the voter to refuse to answer the question without incurring any liability and if the witness volunteers the information even in answer to a question, s. 941 -Of the Act is not violated.

Coupled with this is the evidence of the expert P. W. 17 Dewan K. S. Puri. On this evidence it is affirmatively established that these four ballot papers have been tampered with and the alteration of ballot papers disclosing tampering is to the effect that in each case the voter cast his first preference vote for respondent 1 whlch was altered to ;show second preference vote, and against the name of the appellant a first preference vote is indicated. A mere casual or cursory glance at th tainly embrace the gr:evance made by the election petitioners in this petition. Conversely, s. 80 provides that no election ,shall be called in question except by an election petition presented· i_n accordance with the provisions of Chapter II in the Act. Section 100 which finds :ts place in Chapter III sets out grounds for declaring eiection to be void.

" If the contention of the appellant that the grievance for voiding the election made in the petition ;s not comprehended in any of the subsections of s. 100 is accepted and there is no other provision in the Act for voiding election, the election petitioners would be without.. remedy. It would mean that even though one can indulge into forgery-what is tampering of ballot papers, if not forgery,-and. get '\ away with it. · In order to ensure the purity of election it is better to p ,. so construe s. 100 as to embrace within its fold, as has been done by ~. the Constitution Bench, all conceivable infirmifes which may be urged for voiding an election. Therefore, the contention of the· appellant must be negatived. Having examined all the contentions of the appellant with care that an election appeal deserved, I find no merit in any of them and acc9rd'. ngly this appeal fails and is dismissed with costs. Hearin!? fee in one set.

Interim relief, if any, granted during the pendency of the 11ppeal is hereby vacated. GUPTA, J. I agree with the order made by my learned brother Desai, J. and the essential reasoning in support of it. S. R. Appeal dJsmwed. 26-610SCI/80