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CASE NO.: Appeal (civil)  2475 of 2006

PETITIONER: Nayini Narasimha Reddy

RESPONDENT: Dr. K. Laxman and Others

DATE OF JUDGMENT: 05/05/2006

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No.6785 of 2005]

S.B. Sinha, J :

       Leave granted.

       Interpretation of Section 94 of the Representation of the People Act,  1951 (for short, ’the Act’)  is in question  in this appeal which arises out of a  judgment and order dated 11.03.2005 passed by a learned Single Judge of  the High Court of Andhra Pradesh.                  An election was held in Musheerabad Assembly Constituency on or  about 20.04.2004.  For conducting the said election electronic voting  machines were used.  Whereas the appellant contested as a candidate of  ’Telangana Rashtra Samiti’, the first respondent contested the said election  as a candidate of ’Bharatiya Janata Party’.  Whereas the appellant herein  polled 53553 votes; the first respondent polled 53313 votes.  The first  respondent, thus, lost the election by a margin of 240 votes.  An election  petition was filed by the first respondent assailing the said election before  the High Court of Andhra Pradesh at Hyderabad, which was numbered as  Election Petition No. 4 of 2004.  In the said election petition, it was inter  alia, contended :

       "The Petitioner submits that P.S. No. 91 was  located adjacent to the Central Election Office of the  Petitioner.  As already stated several of the party workers  and sympathizers reside in that area.  All those persons  have cast their vote in favour of the Petitioner.  To  establish the fact that the Petitioner could not have polled  zero votes in P.S. No. 91\005"

       In the said election petition names and identity card numbers of  various persons mentioned in the voter list by way of example were  mentioned.  One of the grounds taken in the election petition was  misalignment of the machine;  asserting that whereas both the parties polled  nil votes from a particular booth, the independent candidates polled a high  number of votes.

       In the said election petition an application was filed by the first  respondent praying for issuance of summons to some witnesses apart from  those whose names had been mentioned in the election petition, inter alia,  stating :

       "I humbly submit that a list of witnesses that are to  be examined on my behalf was filed on 17.1.2005.  

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However, the names of certain of the voters in P.S. No.  91 who had agreed to give evidence could not be  included in the said list of witnesses as there was very  strong likelihood of threat and intimidation.  In that view  of the matter, a Memo dated 17.1.2005 was filed into  Court humbly craving the leave of the Hon’ble Court to  produce the said witnesses at a later date by filing an  appropriate application.  It is respectfully submitted that  non-disclosure of the names of the said witnesses in the  list already filed was only having regard to their safety.  I  submit that their evidence is essential for establishing my  case as it is specifically contended by me in the Election  Petition that I could not have secured zero votes in P.S.  No. 91, Polling Station being located in a BJP stronghold  and several BJP workers, sympathizers including the  wife, mother, sister-in-law and other female relatives of  my polling agent are listed as voters in P.S. No. 91,  which is exclusively reserved for female voters."

       A memo was also filed before the High Court on 17.01.2005, stating :

                "The Petitioner humbly submits that at the time of  preparing the Election Petition certain of the voters in  P.S. No.91 had agreed to give evidence.  The Petitioner  has been informed by the aforesaid persons that they  apprehend threat and intimidation.  In view of this  petitioners humbly crave leave of this Honourable Court  not to disclose their names in the list of witnesses having  regard to their safety and prays that the Honourable Court  permits production of such witnesses during the trial as  per the calendar fixed by this Honourable Court.  The  petitioner undertakes to file the necessary application for  permission to produce the aforesaid witnesses as  contemplated under law and procedure.  Hence this  Memo."

       A contention at the hearing of the said application for issuance of  summons as to whether  having regard to the provision of Section 94 of the  Act, providing for  "no witness or other person shall be required to state for  whom he has voted in an election", summons could be issued by the  Appellant before the High Court  

       The said contention was rejected by the High Court by reason of the  impugned judgment.

       Mr. Harish Salve, the learned Senior Counsel appearing on behalf of  the appellant, submitted that as the concept of ’secrecy of votes’ goes to the  root of democracy, any summons taken out to compel a witness to depose  before the Court, would be invalid in law, as no witness can be asked to  disclose as to in whose favour he had caste  his vote.  Strong reliance in this  behalf has been placed on S. Raghbir Singh Gill v. S. Gurcharan Singh  Tohra and Others [(1980) Supp. SCC 53].

       Mr. L. Nageshwar Rao, the learned Senior Counsel appearing on  behalf of the first respondent, on the other hand, inter alia, contended that  the voters merely enjoy a privilege in terms of Section 94 of the  Act; but the  same would not mean that the courts cannot be asked to issue any summons  therefor.  Drawing our attention to the fact that in the application for  summoning some witnesses, it was contended that the same was filed in  support of the grounds taken in the election petition and as such it would not  be correct to contend that the summons on the witnesses were sought to be  served only for the purpose of obtaining disclosures from them as to in

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whose  favour they had voted in the election.   

       Section 94 of the Act reads as under :

"Secrecy of voting not to be infringed. \026 No witness or  other person shall be required to state for whom he has  voted  at an election.

       Section 94 does not provide for a total embargo on a party to an  election petition to cite a voter as a witness.  What is prohibited is that he  cannot be required to state for whom he had voted at an election.  

       Secrecy of ballots indisputably goes to the root of democracy, but the  same in our opinion may not itself be a ground to refuse issue of summons to  the witnesses, Section 94 of the Act merely confers a privilege upon a voter.   He may even waive his right.  It is not in dispute that any person can be  produced as a witness by the parties to an election petition.  Witnesses so  produced on behalf of the parties without any summons being issued would  be at liberty to disclose in the court as to in whose favour he had exercised  his right of franchise.  It is, therefore, evident that the question as to whether  a witness will exercise his right/privilege conferred in terms of Section 94 of  the Act is a matter of volition.   

       It is one thing to say that the civil court while issuing a summon must  exercise its jurisdiction in terms of sub-rule (2) of Rule 1 of Order XVI of  the Code of Civil Procedure but it is another thing to say that the court  would refuse to summon the witness only because a question as regard  exercise of the privilege of the witness may arise. The court may not refuse  to exercise its jurisdiction only on the ground that by reason thereof the  privilege of a voter may be violated.   

       It is, therefore, necessary to notice the nature and extent of such a  right.  Section 94 of the Act merely states that no witness or other person  shall be required to state  for whom he has voted at an election.  When  questioned, Mr. Salve did not dispute that if a witness is summoned for  proving or disproving one or the other grounds taken in the election petition,  or the defence raised by the elected candidate, summons may be issued and  while examining the said witness in court, a question may also be put to him  as to for whom he had voted at an election.  If such a question is put to him,  indisputably, he may exercise his right not to answer the same.  The court  shall evidently inform him about the said right but by reason thereof no  conclusion can be arrived at that the jurisdiction of the court in the matter of  issuance of summons itself stands abrogated or restricted.  The statute lays  down that a witness would not be required to answer a question to disclose  as to in whose favour he had exercised his right of franchise either before a  court of law or before an authority; but he can exercise the said right only as  a witness.  He, therefore, must appear before the court, or before an election  tribunal either as a witness of a party whether summoned or not.  It is not in  dispute that the witness may or may not exercise his right.  It is furthermore  not in dispute that he may waive the said right.  If that be so, it is beyond our  comprehension as to how the right of a party to the lis to summon a witness  can be denied only on the ground that the issuance of summons by the court  itself would be violative of Section 94 of the Act.

       Sub Rule 2 of Rule 1 of Order XVI of the Code of Civil Procedure  indisputably require the party to file an application for obtaining any  summons for the attendance of any person stating therein the purpose  therefor; but the same would not mean that the court would refuse to  exercise its jurisdiction only because one of the purposes disclosed may be  that the witness may be asked a question as to in whose favour he had  exercised his right of franchise.  The purpose which is required to be  disclosed in such an application for summoning a witness is only with a  view to apprise the court as to whether the evidence which may be adduced,  would be relevant for the purpose of determining the issues and not for any

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other purpose.   

       It may be true that if a person to whom summons is issued appears in  the court, the Court may require him to give evidence or produce any  document in his possession or power, as envisaged under Order XVI of the  Code of Civil Procedure; but the same again would not mean that if thereby  a mere possibility exists that the secrecy of voting thereby may be infringed,  the summons would not be issued at all.  We, for the aforementioned  reasons, do not agree with the contention of Mr. Salve.           In S. Raghbir Singh Gill (supra), this Court laid down the law in the  following terms :       

"14. The marginal note of Section 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) &  (8), 40(1) second proviso, 38-A(4), 39-A(1) & (2) and  similar other rules provide for maintaining secrecy of  ballot. It cannot be gainsaid that various provisions  referred to above ensure secrecy of ballot and even  Section 94 has been enacted to relieve a person from a  situation where he may be obliged to divulge for whom  he has voted under testimonial compulsion. Secrecy of  ballot can be appropriately styled as a postulate of  constitutional democracy. It enshrines a vital principle of  parliamentary institutions set up under the Constitution.  It subserves a very vital public interest in that an elector  or a voter should be absolutely free in exercise of his  franchise untrammelled by any constraint which includes  constraint as to the disclosure. A remote or distinct  possibility that at some point a voter may under a  compulsion of law be forced to disclose for whom he has  voted would act as a positive constraint and check on his  freedom to exercise his franchise in the manner he freely  chooses to exercise. Therefore, it can be said with  confidence that this postulate of constitutional democracy  rests on public policy."

       A question was posed as to whether Section 94 of the Act creates an  absolute prohibition and it was answered in the following terms:

"18. It was said that Section 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. Provisions  cast in negative words are generally treated as absolute  admitting of no exception. But this is not a universal rule.  The words "negative" and "affirmative" statutes mean  nothing in particular. The question is, what was the  intendment? Emphasis is more easily demonstrated when  statute is negative than when it is affirmative but the  question is one of intendment (see Mayor of London v.

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R.6). If language is open to two constructions one must  ascertain the intendment, the mischief sought to be  remedied and the remedy provided to cure the mischief  (see Victoria Sporting Club Ltd. v. Hannan7). And in  such a situation the court must escalate in favour of that  construction which carries out the intendment behind  enactment and accords with reason and fair play. 19. Two possible constructions are, firstly, that the  section casts an absolute prohibition and seals the mouth  of the voter permanently and admits of no exception in  which he can divulge his vote, and secondly, that it is a  privilege of the voter to disclose his vote if he voluntarily  chooses to do so but he cannot be compelled by court or  any other authority to divulge his vote. Which of the two  constructions advances the object of enactment? 20. If Section 94 is interpreted to mean to be a  privilege of the voter to divulge or not to divulge how he  voted and if he chooses not to divulge, Section 94  protects 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 without incurring  any penalty or forfeiture. That guarantees the vital  principle 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 without direct or  indirect compulsion and waive the privilege, nothing  prevents him from disclosing how he voted. No provision  was brought to our notice which would expose him to  any penalty if a voter voluntarily chooses to disclose how  he voted or for whom he 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."

       The said decision, therefore, does not support the contention of Mr.  Salve.           Secrecy of ballots was necessary for ensuring free and fair elections;  but by reason thereof the concept of purity of election cannot be given a go  by.         This Court in A. Neelalohithadasan  Nadar v. George Mascrene and  Others [(1994) Supp. (2) SCC 619], emphasized on the principle of purity of  elections holding that 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.  Therein this Court followed S. Raghbir Singh Gill (supra).   

       For the reasons aforementioned, we are of the opinion that there is no  merit in this appeal, which is dismissed accordingly.  No costs.