TMI Blog1980 (5) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... 976; March 13, 1976, was the last date by which it was permissible to withdraw from the election; in the event of contest, poll was to take place on March 27, 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 independent 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 the system of proportional representation by means of the single transferable vote. Counting took place on the same day after the poll closed at the prescribed hour. Two candidates of the Indian National Congress, Smt. Amarjit Kaur and Sat Pal Mittal secured 29 and 27 first preference votes respectively. Appellant secured 23 first preference votes. Respondent 1, the Akali nominee also secured 23 first preference votes. The quota was 25.51 votes. Accordingly, Smt. Amarjit Kaur and Sat Pal Mittal who had secured first preference votes in excess of the ascertained quota we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the first preference vote in favour of respondent 1, Gurcharan Singh Tohra, the Akali candidate was altered to show second preference vote as also to indicate a first preference vote in favour of the appellant. This was noticed by PW. 2 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 Singh, the Returning Officer, Sardar Tirth Singh Sobti, a Sub-Post Master and the Superintendents of Jails at Sangrur, Patiala and Nabha, for facilitating the tampering and thereby four additional first preference votes 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 was self-evident, they, the petitioners were not in a position to state the exact method adopted in this behalf. The allegation of corrupt practice was that with the assistance of Chief Minister Giani Zail Singh official machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant, the returned candidate, nor respondent 1 the unsuccessful Akali candidate stepped into the witness box. Election petitioners examined P.W. 2 Sardar M. S. Khera, counting agent of respondent 1 four voters whose votes were alleged to have been tampered with and an expert P.W. 17 Dewan K. S. Puri. On behalf of the appellant R.W. 1 S. Partap Singh, the Returning Officer, R.W. 2 Karnail Singh Marhari, R.W. 3 Master Jagir Singh to prove defection from Akali Party, and R.W. 4 the expert Mr. R. K. Vijh to prove that though the four ballot papers appear to be tampered, it must be by voters themselves, were examined. The learned Judge held that the four ballot papers, one each allotted to P.W. 13 S. Surjit Singh Barnala, P.W. 14 S. Jagdev Singh Talwandi, P.W. 15 S. Jaswinder Singh Brar and P.W. 16 S. Parkash Singh Badal, were tampered with in that each of the voter had cast his first preference vote in favour of the unsuccessful Akali candidate S. Gurcharan Singh Tohra and no second preference vote was indicated and each one of the vote was altered so as to appear that each one of them had cast his first preference vote in favour of the returned candidate, the appellant, and second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Ultimately, the learned Judge by his reasoned order dated October 25, 1977, granted the application. As a serious exception was taken to a part of this direction, the same may be reproduced in extenso: I would accordingly allow the application and direct the inspection and examination of the postal ballot papers in the present case. Inevitably the witnesses relevant to these ballot papers are also allowed to be examined with regard thereto in the interest of justice. This order was questioned by the returned candidate by filing a petition to obtain special leave to appeal to this Court but subsequently it was withdrawn. Thereafter all the four concerned witnesses were questioned in their respective examination-in-chief with regard to the first preference vote cast by each of them and also a negative answer was taken that none of them had cast his second preference vote. Mr. P.R. Mridul, learned counsel who appeared for the appellant directed a frontal attack on the order dated October 25, 1977, by which the learned Judge not only allowed the inspection and examination of the postal ballot papers but also permitted the witnesses to be questioned relevant to the ballot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wanted to set up and, therefore, it must be given all importance. The realisation of goals and vision set out in the preamble forms the fabric and permeates the whole scheme of constitution. The goal on the constitutional horizon being a democratic republic, a free and fair election, a fountain spring and cornerstone of democracy, based 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. Further, Sikri, C.J., Shelat, Grover, Hegde, Mukherjea Reddy, JJ. in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala(1), have in clear and unambiguous terms laid down that republic democratic form of Government is one of the basic and essential features of our Constitution. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi Ors.(2), Krishna Iyer, J. has quoted with approval a statement of Sir Winston Churchill which reads as under : At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or volumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r question whether free and fair elections necessarily imply secrecy of voting or to ensure free and fair elections in a given situation secrecy or voting has to yield to the fundamental principle of free and fair election, will be presently examined. At this stage it is necessary to confine to the language in which the provision is couched. Does s. 94 prevent any one from seeking information about how a person has cast his vote from the mouth of the person or is it the privilege of the voter not to be compelled to disclose for whom he has voted ? The provision is cast in negative language. The important words are shall be required . The word `required' has an inbuilt element of compulsion. When it is said that no witness shall be required to state for whom he has voted at an election, on a pure grammatical construction uninhibited by any other consideration it would mean that the witness cannot be compelled against his will to disclose how he has voted or for whom he has voted. When a witness is put in the witness box and he is questioned under oath as to any matter relevant to the issue in any suit or in any civil or criminal proceeding, in which he is called to give evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g false evidence by such answer. One may recall here the constitutional guarantee against self-incrimination as enacted in Article 20(3) which provides that no person accused of any offence shall be compelled to be a witness against himself. It would, therefore, appear that 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 has 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. Section 87(2) of the Act provides that the provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of the Act, be deemed to apply in all respects to the trial of an election petition. Section 95(1) of the Act re-enacts the main part of s. 132 of the Evidence Act. The combined effect of s. 87(2) read with s. 95 of the Act, and omitting s. 94 for the time being, would be that if a witness in an election petition is questioned as to for whom he voted he would be under an obligation to answer that question. The principle of secrecy of ballot neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry section of a statute is to be construed with reference to the context and other sections of the Act, So as, as far as possible, to make a consistent enactment of the whole statute. The marginal note of s. 94 says `secrecy of voting not to be infringed'. Section 128 of the Act casts an obligation on every officer, clerk, agent or other person to maintain and aid in maintaining secrecy of the voting and they shall not (except for some purpose authorised by or under any law) communicate to any person any information calculated to violate such secrecy. Rule 23(3) of the Conduct of Election Rules, 1961 (`Rules' for short) imposes a duty to conceal the serial number of the ballot paper effectively before it is issued at election in any local authorities' constituency or by assembly members. Similarly, rules 23(5)(a) and (b) of the Rules provide for effectively maintaining the secrecy of the postal ballot papers in the manner prescribed therein. Rules 31(2), 38(4), 39(1), (5), (6) and (8), 40(1) second proviso, 38A(4), 39A(1) (2) and similar other rules provide for maintaining secrecy of ballot. It cannot be gainsaid that various provisions referred to above ensure sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assurance that the voter would be able to exercise the franchise untrammeled by any fear and apprehension of any adverse consequence flowing therefrom are the main ingredients of a truly democratic and successful electoral system (see Elections in India by R. P. Bhalla). If free and fair election is the life-blood of constitutional democracy and if secrecy of ballot was ensured to achieve the larger public purpose of free and fair elections either both must be complimentary to each other and co-exist or one must yield to the other to serve the larger public interest. This situation immediately raises the question of construction of s. 94. Does it lend itself open to two constructions? If so, are there inner indicia to prefer one to the other? Can external aid be sought for correct construction to unravel the intention of the Parliament in enacting s. 94? It was said that s. 94 lends itself open to one construction alone. It is cast in negative language which usually is treated as absolute. Proceeding further it was said that this negative provision admits of no exception and enacts an absolute prohibition. Provision cast in negative words are generally treated as absolute ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voted. Section 128 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. 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 Court by his testimony which is the best direct evidence to establish for whom he voted and what mischief has been played with his vote. The interpretation of s. 94 which appeals to us ensures free and fair elections. Secrecy of ballot was mooted to ensure free and fair elections. 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 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one fundamental principle which permeates through all democratically elected parliamentary institutions, viz., to set them up by free and fair election. It 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, 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. An apprehension was, however, voiced that the principle of secrecy enshrined in s. 94 of the Act having been enacted in public interest and it being a prohibition based on public policy, it cannot be waived. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedents to which our attention was drawn would buttrss our conclusion. In the Queen v. Beardsall,(1) at a trial of indictment against a Deputy Returning Officer, for offence under the Ballot Act, 1872, charging him with having fraudulently placed papers purporting to be, but to his knowledge not being, ballot papers in the ballot box, Blackburn, J. allowed the counterfoils and marked register produced under the aforesaid order to be given in 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 subject to a condition essential 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lot 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, para 278, it is stated as under : In the absence of proof or claim of fraud, illegality, or irregularity, parol evidence is not admissible to contradict a ballot, and a voter will not be permitted to testify that he 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 under : The policy of the law is to protect legal voters in the secrecy of the ballot. Accordingly 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 relieve the voter himself from being compelled to testify for whom he voted should prevent other proof of the fact . Exemption a personal privilege.-By the weight of authority the exemption from obligation to disclose the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the returning officers and his accomplices to tamper with the postal ballots. This is in substance a petition for recount. True, recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and 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 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 Behari Ors.,(1) Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav Ors.,(2) Bhabhi v. Sheo Govind Ors.,(3) Ram Autar S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of affairs, had cast 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 postal ballot papers were tampered. And these allegations have been made in the petition. A petition for a recount on the allegation of miscount or error in counting is based upon not specific allegation of miscounting but errors which may indicate a misconduct 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 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 petitioners start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ballot 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 in 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 tampering was in the column opposite the name of S. Gurcharan Singh Tohra. If the allegations in the petition coupled with the evidence of PW.2, M. S. Khera, the counting agent is evaluated, what further proof was needed for inspection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Jaswinder 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 he 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 representation by means of the single transferable vote. Each voter had to show his preference by marking his 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 of them cast his first preference vote in favour of the Akali candidate respondent 1 and did not cast second preference vote in favour of any one else. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfere with the finding of fact reached by the High Court particularly when the High Court comes to a conclusion on appreciation of all material evidence placed before it. As a corollary this Court would be slow to interfere with such findings of fact based on appraisal of evidence unless there is something radically wrong with the approach of the learned judge trying the election petition (see Ramji Lal v. Ram Babu Maheshwari Anr.,(1) D. Gopala Reddy v. S. Bai Talapalikar Ors and Sumitra Devi.(2) It must, therefore, be held succinctly established that the four ballot papers of the four witnesses have been tampered with and if their evidence is to be accepted, the tampering is to the effect that each one of them had cast his first preference vote in favour of respondent 1 but it was altered to show that it was a second preference vote and the first preference vote was cast in favour of the appellant. Mr. Mridul, however, contended that in the circumstances disclosed in this case a possibility that the tampering was indulged into by the very four voters cannot be ruled out and it is impermissible to further probe into the matter. This argument has merely to be mentioned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of India. Against that, the Akali candidate would have 27 first preference votes. As a measure of abundant caution the Congress Party seems to have divided its votes between two of its candidates as would be evident from the result of voting that the two candidates secured 29 and 27 first preference votes. Thus 56 first preference votes from among the combined strength of 75 of the Congress and Communist Party of India were appropriated by the two official candidates. The third candidate could at best expect 19 first preference votes. He has secured 23 first preference votes. Mr. Mridul urged that these four voters deliberately pretended to vote for Akali Party candidate so as to avoid any disciplinary action by the Akali Party but in fact they were keen to vote for the appellant. This necessitates examination of who these four voters are. Out of the four, one is Sardar S. S. Barnala who, when be gave evidence, was Member of Parliament elected on Akali ticket an associate of Janata Party and was a Member of the Central Cabinet. Second was Sardar Parkash Singh Badal who was elected on Akali ticket and associated with Janta Party and joined first as Cabinet Minister in 1977 March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion that after each of these four voters cast his first preference vote in favour of the Akali candidate and handed in sealed envelopes but before the envelopes containing the ballot papers were opened at the time of counting someone has indulged into mischief of tampering with these votes. That the votes have been tampered with has not been questioned. The nature of tampering and the advantage derived thereby is self-evident. The question then is, who would be interested in this tampering ? It must be confessed that there is no direct evidence on this point and presumably there could be none on such a point unless some accomplice betrays the confidence of the conspirators. Petitioners made serious allegations against the Returning Officer but that again is a matter of surmise. It is not possible to say that the Returning Officer obliged the then Chief Minister and was amply rewarded. So also we need not examine the suggestion that the Sub-Post Master was amply rewarded. The most uncongenial fact that stares into the face is that these four ballot papers have been tampered with and the tampering has benefited none else than the appellant. We say no more. The second limb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Returning Officer should be presumed to be correct, and there was no point in the Court trying to find out as to which candidate had obtained more valid votes. The decision does not purport to lay down a wider proposition canvassed on behalf of the appellant in this case that as soon as it is shown that some ballot papers have been tampered with, the Court has merely to chart an easy course of rejecting those 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 indulged into such practice. Rule 56 of 1961 Rules would shed some light on this point. Sub-rule (2) provides various situations in which the returning officer is under an obligation to reject a ballot paper. It does not refer to a tampered ballot paper though it refers to damaged and mutilated ballot paper and how it should be dealt with. Sub-rule (2) further provides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 there is improper refusal of any vote it implies again two things, viz., a vote which ought to have been accepted as valid vote has been improperly refused as an invalid vote, or there is an improper refusal to accept the vote in favour of a particular candidate. On a pure grammatical construction of the relevant clause it cannot be gainsaid that 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 consequent reception in favour of any contesting candidates 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 expression `reception' implies `refuse to reject'. Apart from the setting and the context in which the clause finds its place, in its interpretation it is to be borne in mind that it seeks to specify one of the grounds for declaring an election to be void. In this situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly indicated and if the gloss of tampering was removed the Returning Officer would have no difficulty in ascertaining the intention of the voters after so ascertaining the intention count the vote accordingly. It is not open to him to take an easy escape route as was contended in this case that once tampering is shown, the ballot paper should be rejected as invalid. The Court in an election petition will have to undertake this exercise. The ground on which the election is sought to be avoided in the election petition is clearly covered by s. 100(1)(d) (iii). Even apart from this, this position is no more res integra in view of the decision of a Constitution Bench of this Court in Mohinder Singh Gill Anr. (supra). Krishna Iyer, J., has neatly summed up all embracing and pervasive panorama covered by s. 100 which reads as under : Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 of the Act has been designedly drafted to embrace all conceivable infirmities which may be urged. To make the project foolpro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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