REPORTABLE    

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5891 OF 2008

SMT. REKHA RANA  … APPELLANT

VERSUS

JAIPAL SHARMA & ORS. … RESPONDENTS

J U D G M E N T

D.K. JAIN, J.

Challenge in this appeal by special leave is to an interlocutory  

order dated 20th July, 2007 passed by the High Court of Punjab and  

Haryana at Chandigarh in CM No. 2E of 2007 in Election Petition No.  

1 of 2005. By the impugned order, the High Court has allowed the  

application preferred by  respondent No.1 (hereinafter referred to as  

“the election petitioner”)  seeking a direction for  opening of  sealed  

marked  electoral  rolls  in  order  to  put  the  same  to  a  witness  

summoned by him.

2. Election to Gharaunda Assembly Constituency was held on 3rd  

February,  2005  and  the  appellant  herein  was  declared  as

elected by a margin of 21 votes over the election petitioner,  

who  got  the  second  highest  number  of  votes.  While  the  

appellant  secured  25,237  votes,  the  election  petitioner  got  

25,216 votes. The other eligible contestants, who are all party  

respondents in this appeal, got insignificant number of votes.

3. The election of the appellant was challenged by the election  

petitioner,  mainly  on  the  ground  that  the  appellant  was  the  

beneficiary of a large number of void votes cast in her favour  

by impersonation.  In nutshell,  the allegation was that:  (i)  96  

voters had cast their votes twice during the process of polling;  

(ii) 29 votes had been cast in favour of the appellant by way of  

impersonation,  on  behalf  of  the  persons  who  were  not  

available  in  the  constituency  on  the  date  of  polling;  (iii)  53  

votes  had  been  cast   in  favour  of  the  appellant  by  way  of  

impersonation on behalf of the persons who had died prior to  

the date of polling; and (iv) 10 votes had been cast in favour of  

the appellant by way of impersonation on behalf of two persons  

who  were  serving  sentences  in  jail  and  on  behalf  of  eight  

persons who were abroad on the date of polling. The election  

petition,  obviously,  was  contested  by  the  appellant.  Upon  

consideration of pleadings, six issues were framed. The first  

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three  issues  viz.,  (i)  whether  the  election  petition  does  not  

disclose a cause of action,  if  so, its effect?;  (ii)  whether the  

election  petition  lacks  in  material  facts  and  is  liable  to  be  

dismissed on this ground?; and (iii) whether allegations made  

in para No.4 raise a triable issue?, were ordered to be treated  

as “preliminary” issues. Vide order dated 3rd July, 2006, all the  

said issues were decided in favour of the election petitioner  

and against the appellant.

4. In  the  course  of  recording  of  evidence  of  one  of  the  cited  

witnesses (PW21), counsel for the election petitioner desired  

the  witness  to  make  a  statement  after  opening  the  marked  

electoral rolls, which were available in the court but in sealed  

covers. This was objected to by counsel for the appellant on  

the ground that till a specific order was passed by the court in  

that  behalf,  the marked electoral  rolls  could not  be opened,  

which resulted in filing of a miscellaneous application, on which  

the impugned order has been passed.

5. Briefly taking note of the evidence already led by the election  

petitioner, the High Court has observed in the impugned order  

that  in  the  election  petition,  the  election  petitioner  has  

expressed  the  basis  of  his  claim  to  the  minutest  details  in  

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terms of the provisions of the Representation of Peoples Act,  

1951 (for short “the Act”) as well as the Conduct of Election  

Rules,  1961  (for  short  “the  Rules”);  the  pleadings  are  

supported by an affidavit in consonance with Rule 94-A of the  

Rules;  the  evidence  recorded  on  behalf  of  the  election  

petitioner  so  far  is  in  consonance  with  the  pleadings  and  

therefore,  it  is  not  a  case  where  the  election  petitioner  is  

intending to have a roving enquiry so as to fish out material for  

raising a challenge to the election of the appellant. The Court  

felt that the ultimate truth in respect of clear allegations levelled  

by the election petitioner can only be arrived at on the basis of  

the marked electoral rolls. Finally, recording its satisfaction that  

it is a fit case where the prayer made by the election petitioner  

for leading evidence on the basis of the marked electoral rolls  

deserves to be allowed and by grant of the said prayer, the  

norm of  “secrecy  of  ballot”  would not  be violated,  as  noted  

earlier,  the  Court  has  directed  the  opening  of  the  sealed  

marked electoral rolls. Hence the present appeal.

6. Mr. Vijay Hansaria, learned senior counsel appearing on behalf  

of the appellant, submitted that the High Court has committed  

a  serious  error  of  law in  directing de-sealing of  the marked  

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electoral rolls inasmuch as the inspection thereof would result  

in  the infringement  of  the principle  of  “secrecy of  ballot”,  so  

sacrosanct to the electoral process. It was argued that a mere  

assertion  in the election petition that a large number of void  

votes had been cast in favour of the appellant by resorting to  

impersonation  was  not  sufficient  to  allow  inspection  of  any  

document in terms of Rule 93 of the Rules. In support of the  

proposition that an order for inspection cannot be granted as a  

matter  of  course  and  the  Election  Tribunal  must  record  its  

satisfaction  about  the  necessity  of  inspection,  which,  in  the  

present  case,  the High Court  has failed to do,  reliance was  

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

Hussain Kamil Kidwai1.  Relying on another decision of this  

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

stressed that inspection of the electoral rolls is to be allowed  

very  sparingly  and  only  when  it  is  absolutely  essential  to  

determine the issue.

7. Per  contra,  Mr.  P.S.  Patwalia,  learned  senior  counsel  

appearing on behalf of the election petitioner, while supporting  

the impugned order, at the outset, pointed out that order dated  

1 AIR 1964 SC 1249 2 (1984) 2 SCC 36

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3rd July, 2006 passed by the High Court, deciding all the three  

aforenoted  preliminary  issues  in  favour  of  the  election  

petitioner shows that all material facts required to be pleaded  

in an election petition had been clearly stated. It was submitted  

that in the said order, the High Court had in very clear terms  

observed that in the present case, the election petitioner had  

disclosed, as far as possible, all material facts on the basis of  

which he wished to authenticate the allegations levelled by him  

against  the appellant;  the allegations levelled in the election  

petition were clear and precise and will afford the appellant an  

adequate opportunity to controvert them. It was thus, submitted  

that  in  view  of  the  aforenoted  findings,  the  satisfaction  

recorded by the High Court that inspection of the electoral rolls  

was  essential  for  determination  of  the  issue  raised  by  the  

election petitioner was based on cogent and adequate material  

and therefore, no fault could be found therewith.  Asserting that  

on the facts of the instant case, in the inspection of electoral  

rolls  there  is  no  element  of  breach  of  “secrecy  of  ballot”  

principle,  learned  counsel  submitted  that  in  any  event,  the  

interest of “purity of ballot” must prevail over “secrecy of ballot”.  

In support of the proposition, learned counsel relied on a three  

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Judge Bench decision of  this Court  in  A. Neelalohitadasan  

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

that Section 83(1)(a) of the Act contemplates only giving of a  

concise statement of the material facts on which the election  

petitioner relies, learned counsel pressed in aid the decision of  

this Court in Manphul Singh Vs. Surinder Singh4.

8. In the backdrop of the above submissions, the first question for  

consideration is  as to  what  exactly  is  the underlying  object,  

scope  and  ambit  of  the  doctrine  of  “secrecy  of  ballot”  as  

enshrined in Section 94 of the Act?

9. Section 94 of the Act provides that except in a case of voting  

by open ballot, no witness or other person shall be required to  

state  for  whom he  has  voted.  The underlying  object  of  the  

provision is to assure a voter that he would not be compelled,  

directly  or  indirectly,  by  any  authority  to  disclose  as  to  for  

whom he has voted, so that he may vote without fear or favour  

and is free from any apprehension of its disclosure against his  

will from his own lips. The Section confers a privilege on the  

voter to protect him both in the Court when he is styled as a  

witness  and outside the Court  when he may be questioned  

3 1994 Supp (2) SCC 619 4 (1973) 2 SCC 599

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about how he voted. This precisely is the principle of “secrecy  

of  ballot”.   The  “secrecy  of  ballot”  has  always  been  the  

hallmark  of  the  concept  of  free  and  fair  election,  so  very  

essential in the democratic principles adopted by our polity. It  

undoubtedly  is  an  indispensable  adjunct  of  free  and  fair  

elections.  

10. The true scope and ambit of the doctrine of “secrecy of ballot”  

was lucidly elaborated by this Court in S. Raghbir Singh Gill   

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

any  interpretation  of  Section  94  of  the  Act  must  essentially  

subserve the purpose for which it is enacted. The interpretative  

process  must  advance  the  basic  postulate  of  free  and  fair  

election for setting up democratic institution and not retard it.  

Section  94  cannot  be  interpreted  divorced  from  the  

constitutional values enshrined in the Constitution. Expressing  

the view that “Secrecy of Ballot” as provided in Section 94 of  

the Act,  was mooted “to ensure free and fair  elections”,  the  

Court opined thus:

“If the very secrecy of ballot instead of ensuring free and  fair elections strikes at the root of the principle of free and  fair elections this basic postulate of democracy would be  utilised for undoing free and fair elections which provide  life-blood to parliamentary democracy. If secrecy of ballot  

5 1980 Supp. SCC 53

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instead of ensuring free and fair elections is used, as is  done in this case, to defeat the very public purpose for  which it is enacted, to suppress a wrong coming to light  and to protect a fraud on the election process or even to  defend a crime, viz., forgery of ballot papers, this principle  of secrecy of ballot will have to yield to the larger principle  of free and fair elections.”

Noticing  that  the  Act  is  a  self  contained  Code  on  the  subject  of  

elections  and  reiterating  that  “there  is  one  fundamental  principle  

which  permeates  through  all  democratically  elected  parliamentary  

institutions, viz., to set them up by free and fair elections, the Court  

observed thus:

“The principle of secrecy of ballot cannot stand aloof or in  isolation and in confrontation to the foundation of free and  fair elections, viz., purity of election. They can co-exist but  as stated earlier, where one is used to destroy the other,  the first one must yield to principle of purity of election in  larger public interest. In fact secrecy of ballot, a privilege  of the voter, is not inviolable and may be waived by him  as a responsible citizen of this country to ensure free and  fair election and to unravel foul play”.

11. Taking note of the law laid down in Raghbir Singh Gill’s case  

(supra) with reference to the principle of “secrecy of ballot”, in  

A. Neelalohitadasan Nadar (supra), this Court observed thus:

“But this right of the voter is not absolute. It must yield to  the principle of "purity of election" in larger public interest.  The exercise of  extrication of  void votes under  Section  62(4) of the Act would not in any manner impinge on the  secrecy  of  ballot  especially  when  void  votes  are  those  which have to be treated as no votes at all. "Secrecy of  ballot"  principle  pre-supposes  a  validly  cast  vote,  the  sanctity  and sacrosanct  of  which must  in  all  events  be  

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preserved.  When  it  is  talked  of  ensuring  free  and  fair  elections it  is  meant  elections held on the fundamental  foundation of purity and the "secrecy of ballot" as an allied  vital principle.”

Thus, the Court reiterated that out of the two competing principles,  

the “purity of election” principle must have its way and that the “rule  

of  secrecy”,  as contemplated in Section 94 of  the Act,  cannot be  

pressed into  service  to  suppress  a  wrong coming to  light  and to  

protect a fraud on the election process.  

12. Having noted the law on the point, the next question requiring  

adjudication  is  whether  on  facts  at  hand,  the  impugned  

direction  infringes  the  principle  of  “secrecy  of  ballot”  and  

therefore,  it is bad in law?

13. As already noted above,  the case of  the election petitioner,  

pleaded in the election petition, is that a number of votes had  

been  cast  by  impersonating  electors,  who  were  either  not  

available in the constituency on the date of election or had died  

much  prior  to  the  date  of  election  or  were  serving  jail  

sentences or were abroad on the relevant date. The factum of  

casting of votes by a particular elector could be proved only on  

the basis of marked electoral rolls. More so, when the names  

of the voters who were alleged to have double voted or have  

died etc., were specifically mentioned in the election petition.  

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From a marked electoral rolls, it is only possible to ascertain  

whether or not a vote had been cast in the name of a voter  

from  a  particular  polling  booth  but  it  is  never  possible  to  

decipher therefrom as to who is the beneficiary of the said vote  

as there is no indication on the electoral roll showing for whom  

the voter had cast his vote. It is to be borne in mind that the  

marked electoral roll is maintained primarily for the purpose of  

identifying  the  elector  and  as  such,  we  fail  to  see  how  its  

production  would  impair  the  “secrecy  of  ballot”  principle.  

Accordingly, we reject the contention of learned counsel for the  

appellant on this aspect.

14. We feel that having regard to the nature of allegation, the stand  

of the appellant must also fail when tested on the touchstone of  

the  “purity  of  election”  principle  as  enunciated  in  Raghbir  

Singh Gill’s case (supra). Sub-Sections (4) and (5) of Section  

62 of the Act respectively bar double voting and voting by a  

person who is confined in a prison for any reason and a vote  

cast  by  any  such  person  shall  be  void.  As  observed  in  A.  

Neelalohitadasan  Nadar’s  case  (supra),  the  exercise  of  

extrication of void votes under Section 62(4) of the Act would  

not in any manner impinge on the “secrecy of ballot”, especially  

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when void votes  are  those which  have to  be treated as no  

votes at all. "Secrecy of ballot" principle pre-supposes a validly  

cast  vote,  the  sanctity  and  sacrosanct  of  which  must  in  all  

events be preserved. Therefore, we are in complete agreement  

with the High Court that on the pleadings of the parties, a case  

for inspection of the marked electoral roll had been made out.  

We  do  not  find  any  infirmity  in  the  impugned  direction  

warranting our interference.

15. Before closing, we may also deal with the argument advanced  

by learned counsel for the appellant in regard to the scope of  

Rule 93.  The stand of the appellant is that the election petition  

lacks  sufficient  facts  on  the  basis  whereof  the  court  could  

record the requisite satisfaction as stipulated in the said Rule  

before  ordering  inspection  of  the  Electoral  Roll.  Rule  93  

provides that the documents mentioned in sub-rule (1) thereof  

shall not be opened and their contents shall not be inspected  

by, or produced before any person or authority except under  

the orders of the competent court. Clause (d) of Sub-rule (1) of  

Rule 93 refers to marked copy of the Electoral Roll. It is trite  

that inspection under the said Rule can be allowed only when  

the following two conditions are satisfied:

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(i) The  material  facts  on  the  basis  of  which  inspection  of  

documents is sought, must be clearly and specifically pleaded;  

and

(ii) The Court must be satisfied on evidence, even if in the form of  

affidavit, that it is necessary to allow inspection in the interest  

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

It  is  equally  well  settled  that  the  inspection  of  the  documents  

mentioned in sub-rule (1) cannot be allowed as a matter of course  

and a  prayer  for  inspection  must  be refused by the Court  if  it  is  

satisfied  that  in  the  garb  of  inspection,  a  defeated  candidate  is  

indulging in a roving enquiry in order to fish out materials for getting  

the election set aside. Nevertheless, if precise allegations of material  

facts  are  available  on  record  and  the  Court  is  satisfied  that  

inspection  of  the  documents  is  necessary  to  determine  the  issue  

arising for the decision in the case as also in the interest of justice,  

then the Court must exercise its power under the said rule to allow  

inspection.   Needless  to  emphasise  that  recording  of  reasons  in  

either of the two situations is a pre-requisite for exercise of power  

under the said Rule.

16. In the instant case, as noted earlier, the election petitioner has  

specifically mentioned the names of the persons who had been  

impersonated  or  had  double  voted.  Moreover,  while  dealing  

6 (1984) 2 SCC 36

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with the three preliminary issues,  in its  order dated 3rd July,  

2006,  the  Court  had recorded a  categorical  finding  that  the  

election petitioner had placed on record sufficient material to  

substantiate  the allegations made in  the election petition.  In  

view of the said finding, we do not find any substance in the  

contention  of  learned  counsel  that  the  twin  conditions  as  

contemplated in Rule 93 were not satisfied.

17. In view of the foregoing discussion, we do not find any merit in  

the appeal, which is dismissed accordingly with costs.

…………………………………………J. (D.K. JAIN)

…………………………………………J.  (R.M. LODHA)

NEW DELHI; JULY 10, 2009.

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