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PETITIONER: SASHI BHUSHAN

       Vs.

RESPONDENT: PROF.  BALRAJ MADHOK & ORS.

DATE OF JUDGMENT22/10/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. KHANNA, HANS RAJ

CITATION:  1972 AIR 1251            1972 SCR  (2) 177  CITATOR INFO :  RF         1975 SC 403  (8)  R          1975 SC 502  (8)  RF         1975 SC2117  (8,9)

ACT: Election--Serious  allegations against  Election  Commission that  it  enabled tempering with  ballot  papers--No  direct evidence  of  allegations--Scrutiny  of  ballot   papers--It should be ordered.

HEADNOTE: In the last general election to the Lok Sabha the appellants were  declared  elected and the respondents,  who  were  the unsuccessful  candidates  challenged  the  validity  of  the election on the ground that the ruling party had rigged  the election.   According to the respondents many ballot  papers were  chemically  treated so that the  mechanically  stamped marks  in  favour  of the  successful  candidates  by  using invisible ink emerged and the mark actually put at the  time of  polling  disappeared after a few days.  It  was  alleged that  this was done as a result. of conspiracy  between  the ruling  party  and  the Election Commission,  and  that  the Election   Commission   took  certain  unusual   steps   for facilitating  the substitution of chemically treated  ballot papers.  There was no direct evidence of the allegations and the  respondents  sought  to probabilise  their  version  by alleging that the colour of a large number of ballot  papers was different from the colour of the original ballot papers, and  that at the time of counting, it was noticed  that  the marking was uniform and at an identical spot in each of  the ballot papers in favour of the appellants. . The  trial  Judge  permitted inspection of  all  the  ballot papers  polled.   In appeal to this Court it  was  contended that  :  (1)  that the allegations of  the  respondent  were propaganda  stunts  wholly  devoid of truth;  (2)  that  the attention  of the Returning Officer was not invited  to  the alleged  strange features at the time of counting,  and  (3) that  the scrutiny of ballot papers could not be allowed  as it violates the secrecy of the ballot. Dismissing the appeals, HELD:  (1)  Assuming  that  the  allegation  made  was  mere propaganda it was in     the   public  interest   that   the allegations are required into the propaganda exposed. Merely

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because allegations made are difficult to accept they cannot be dismissed summarily.  In all such matters the court’s aim should  be to render complete justice between  parties.   If the  allegations  made  raise issues  of  public  importance greater   care   and  circumspection  is   necessary.    The allegation  that the electoral process has been fouled is  a very serious allegation and is a challenge to the  integrity and impartiality of the Election Commission and a  challenge to the survival of democratic institutions. [180 G-H; 181 A- B; 182 B-C] (2)  Assuming that the persons concerned did not inform  the Returning  Officers  of what they observed at  the  time  of counting, it does not estop the respondents from taking  the pleas in the election petitions.  It is only a  circumstance to be considered on the question of value to be attached  to the allegation.  Even assuming that the respondents made the allegations  as  a result of not  merely  observing  certain facts  at the time of counting but on the basis  of  various rumours, that by itself is not sufficient to brush aside the allegations. [181 G-H] (3)  No rigid rules have been laid nor can he laid down  for allowing  inspection of ballot papers.  The overriding  test is the interests of justice, depending on the facts of  each case.  A judge while deciding the question 178 of  inspection  of  ballot  papers must  bear  in  mind  the importance  of the secrecy of ballot.  Secrecy of ballot  is important  but doing justice is more important and it  would be more so if what is at stake is the interests of  society. The allegations in support of the prayer for inspection must not  be  vague  or indefinite.  They must  be  supported  by material facts and the prayer made must be a bona fide  one. Further, the allegations regarding the chemical treatment of ballot  papers in the present case, cannot be proved in  any other manner than by inspection. [182 C-D; 184 E-G] But the High Court erred in permitting a general  inspection of  the  ballot  papers.  It would  be  sufficient  if  some substantial  number  of  ballot papers  polled  by  each  of returned candidates are selected from different bundles  and compared  with  the  ballot papers cast  in  favour  of  the respondents.   If  the trial Judge thereafter comes  to  the conclusion that the matter should be further probed into  he may  take  evidence  on the points in  issue  including  the evidence  of expert witnesses, and thereafter, decide if  it was  necessary  direct a general inspection  of  the  ballot papers. [185 F-H] Ram  Sewak  Yadav v. Hussain Kamil Kidwai & ors.,  [1964]  6 S.C.R.  238, Dr. Jagjit Singh v. Giani Kartar Singh,  A.I.R. 1966 S.C. 773 and Jitendra Bahadur Singh v. Krishna Behari & Ors., [1970] 1 S.C.R. 852, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1343  and 1473 of 1971. Appeals by special leave from the judgments and orders dated September 3, 1971 and August 6, 1971 of the Delhi High Court in I.A. No. 1170 of 1971 in Election Petition No. 1 of  1971 and Election Petition No. 2 of 1971. C.  K.  Daphtary, M. C. Bhandare and C. M. Oberoi,  for  the appellant (in C.A. No. 1343 of 1971). D.  D.  Chawla, B. P. Nanda and J. B.  Dadachanji,  for  the appellant (in C.A. No. 1473 of 1971). S.   V. Gupte, U. M. Trivedi, S. N. Marwah, R. P.  Bansal,B.

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R. Sabarwal, N. M. Ghatate and K. C. Dua, for respondent No. 1 (in C.A. No. 1343/71). C.  B. Agarwala, S. N. Marwah, B. P. Bansal A. K. Marwah and K.C. Dua, for respondent No. 1 (in C.A. No. 147 3 of 1971) V.    P.   Joshi,  for  respondent  No.  6  (in   both   the appeals).Respondent  No. 8 appeared in person (in  both  the appeals). The Judgment of the Court was delivered by Hegde,  J.  These appeals by special leave  arise  from  the decision   of  Andley  J.  (Delhi  High  Court)   permitting inspection  of  the  ballot papers polled  during  the  last general  election  to the Lok Sabha held last March  in  the South Delhi Constituency and the Delhi-Sadar Constituency. 179 The  appellants  are the successful candidates.   They  con- tested in the two constituencies mentioned earlier on behalf of  the  ruling Congress party.  Their symbol  was  cow  and calf.   Their  nearest rivals were the  Jan  Sangh  nominees whose  symbol  was  Deepak.  The  appellants  were  declared elected.    The  unsuccessful  Jan-Sangh   candidates   have challenged the validity of the election of the appellants. The main ground pleaded in support of the election  petition was  that  the ruling party had rigged  the  election.   The process  adopted in rigging the election, according  to  the election  petitioners is a somewhat complicated  one.   That process was explained to us thus : Millions of ballot papers were   chemically  treated;  the  symbol  of  the   congress candidates  in those ballot papers was mechanically  stamped by  using  invisible  ink.   As a  result  of  the  chemical treatment  of those ballot papers, the mark put at the  time of the polling disappeared after a few days and the stamping mechanically  placed  earlier emerged.  The  suggestion  was that  this was done as a result of a conspiracy between  the ruling party and the Election Commission.  To carry out  the design in question, we were told that quite contrary to  the earlier  practice,  the Election Commission  instructed  the Returning Officers to forward to Delhi a substantial  number of  ballot papers of each constituency, ostensibly  for  the purpose  of scrutiny but really for the purpose of  carrying out the design mentioned earlier, According to them in place of  the ballot papers received, the Returning Officers  were supplied  with  the  ballot papers  chemically  treated  and mechanically stamped.  Those ballot papers formed a part  of the ballot papers used at the election.  It was further said that in furtherance of the above design, the Eelection  Com- mission  made  two  alterations  in  the  practice  followed earlier.  Firstly it provided a larger interval between  the date  of  polling and the date of counting and  secondly  by precipitate alteration of a rule, it provided for mixing  up of the ballot papers of various. booths and rotating them in drums.   We  were further told that these  innovations  were introduced  so  that the chemical treatment  of  the  ballot papers may have the desired effect. The  election  petitioners do not claim to have  any  direct evidence to support their version.  They seek to prove their version  primarily  on the basis of the examination  of  the ballot papers.  But to probabilise their version, they  have put   forward  various  circumstances.   They   have   filed affidavits of two persons who claim to have been present  at the time of counting.  They supported the allegations in the petitions  seeking  inspection regarding the facts  said  to have  been  observed  at  the  time  of  counting  In  those petitions  it was alleged that at the time of the  counting, it  was noticed that the colour of a large number of  ballot papers

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180 was  different from the colour of the other  ballot  papers, stamping of, the symbols in those ballot papers was uniform, at  an  identical spot in each of those ballot  papers,  the stamps  were uniform in density and they looked  bright  and fresh.  Those features were quite dissimilar to those  found in  the  other papers including those  containing  votes  in favour of the defeated candidates.  The election petitioners in this connection referred to the rumours prevailing  about the  rigging of the election, the landslide victory  of  the ruling  party which according to them was wholly  unexpected and  finding of huge quantity of unused ballot papers  in  a godown  in Chandigarh.  The, material facts  supporting  the allegation  of rigging are those said to have been  observed at the time of the counting.  In addition they also  pointed out  the  changes  made by the Election  Commission  in  the counting  procedure and tried to draw an  adverse  inference therefrom.  Whether the, observations said to have been made are  true  or  whether  they  were  merely  the  figment  of imagination  of some fertile brains has yet to be  examined. The only effective way of checking the correctness of  those allegations is by inspecting the ballot papers. We  are free to admit that we are unable to  comprehend  the theories propounded by the election petitioners.  But we are conscious  of  our  limitations.  The march  of  science  in recent  years  has  shown  that  what  was  thought  to   be impossible  just  a  few  years  back  has  become  an  easy possibility  now.   What  we  would  have  thought  as  wild imaginations some years back are now proved to be realities. Hence  we  are  unable  to reject  the  allegations  of  the election  petitioners  without scrutiny.   We  shall  accept nothing and reject nothing except on satisfactory proof.  We are  approaching  the  allegations  made  in  the   election petition in that spirit. The  learned trial judge did not hold that  the  allegations made  by  the  election  petitioners  were  not  bona   fide allegations.   We  see  no  reason to  come  to  a  contrary conclusion.  He took the view that those allegations were of serious character and the material facts stated in suport of those  allegations  were such as to call  for  investigation into  the  truth of those allegations.  We are of  the  same opinion.  The allegation that our electoral process has been fouled  is a very serious allegation, That allegation  is  a challenge to the integrity and impartiality of the  Election Commission.   Those  allegations  if believed  are  sure  to undermine  the  confidence of our people in  our  democratic institutions.  Herein we are not merely concerned about  the validity  of elections in two constituencies.  They  are  no doubt   important  but  in  the  context  of  things   their importance   pales  into  insignificance.   What   is   more important  is the survival of the very  democratic  institu- tions on which our way of life depends. 181 It  was  said,  on  behalf  of  the  appellants  that  those allegations were nothing but propaganda stunts and they were wholly  devoid  of truth.  If that is so, it  is  in  public interest  that  the  falsity of that  propaganda  should  be exposed.   The confidence in our electoral machinery  should not be allowed to be corroded by false propoganda.  It is of utmost  importance  that  our electorate  should  have  full confidence  in the impartiality of the Election  Commission. Even  the  very best institutions can be maligned.   In  all countries,  at all times, there are gullible  persons.   The effectiveness of an institution like the Election Commission depends on public confidence.  For building up public confi-

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dence,  public  must be given the opportunity  to  know  the truth.   Any  attempt  to  obstruct  an  enquiry  into   the allegations made may give an  impression that there might be some truth in the allegations made. From  the records we gather that the allegations with  which we  are concerned are. being made in several places in  this country  with some persistency.  It is not unlikely  that  a section  of our people, rightly or wrongly,  have  persuaded themselves   to  believe  in  those  allegations.   Such   a situation should not be allowed to remain.  The strength  of a  democratic  society  depends  on  the  knowledge  of  its ordinary  citizens  about the affairs  of  the  institutions created  to  safeguard their rights.  It  is  dangerous  to, allow them to feed themselves with rumours. It  was urged on behalf of the appellants that the  scrutiny of ballot papers is a very serious thing; the secrecy of the ballot is of utmost importance; except on very good grounds, inspection  of ballot papers should not be allowed  and  the petitioners  have failed to make out a case for  inspection. It  was  further  urged that at the time  of  counting,  the attention  of. the Returning Officer was not invited to  the strange features mentioned earlier nor was the acceptance of any  of those ballot papers objected to on the  ground  that they were spurious ballot papers. According  to the election petitioners, they did invite  the attention of the Assistant Returning Officer to the  various features  mentioned by them.  It is not necessary for us  to go  into that controversy at this stage.  Assuming that  the persons  concerned  did not inform the  Assistant  Returning Officer  of  what they had observed, it does not  estop  the Election  petitioners from taking the pleas in  question  in the   election   petitions  though  undoubtedly  it   is   a circumstance  to be considered on the question of the  value to  be  attached  to  the  allegations  made  regarding  the observations  said  to  have been made at the  time  of  the counting.   Assuming  that  the conclusion  reached  by  the election petitioners was the result of not merely  observing certain  facts at the time of the counting but on the  basis of various circumstances, some of 182 which came to their notice before the election, some at  the time  of the counting and some after the counting,  that  by itself is not sufficient to brush aside the allegations. It is true that merely because someone makes bold and  comes out  with a desperate allegation, that by itself should  not be a ground to attach value to the allegation made.  But  at the  same  time  serious  allegations  cannot  be  dismissed summarily   merely  because  they  do  not  look   probable. Prudence requires a cautious approach in these matters.   In all  these  matters,  the court’s aim should  be  to  render complete  justice  between  the parties.   Further,  if  the allegations made raise issues of public importance.  greater care and circumspection is necessary. These  cases have peculiar features of their own.   No  such case had come up for decision earlier.  Hence decided  cases can give little assistance to us.  In a matter like allowing inspection  of ballot papers, no rigid rules have been  laid down,  nor can be laid down.  Much depends on the  facts  of each  case.   The  primary aim of the courts  is  to  render complete  justice  between  the parties.   Subject  to  that overriding   consideration,  courts  have  laid   down   the circumstances  that  should weigh in  granting  or  refusing inspection.   Having said that much let us now  examine  the cases read to us on behalf of the appellants. In Ram Sewak Yadav v. Hussain Kamil Kidwai and ors.(1), ,one

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of  the defeated candidates challenged the election  of  the appellant, the returned candidate, inter alia, on the ground that there had been improper reception of invalid votes  and rejection of valid notes at the time of counting and that on a  true  count he would have received a  majority  of  valid votes.  Hence he claimed that he was entitled to be declared duly  elected.  He claimed that by inspection of the  ballot papers,  he will be able to establish his case.  He  averred that on the aforesaid allegations, the Tribunal was bound to grant  an order for inspection, because he had tendered  the sealed  boxes  of  ballot papers in evidence,  and  on  that account all the ballot papers were part of the record.   The Tribunal in its order stated that nothing was brought to its notice which would justify granting an order for inspection. It further observed "if in future from the facts that may be brought  to the notice of the Tribunal, it appears  that  in the  interests  of  justice inspection  should  be  allowed, necessary  orders  allowing an inspection  could  always  be passed".  Thereupon another application was submitted by the election petitioner asking for inspection but no  additional materials  were  placed  before the  Tribunal  and  no  oral evidence  was led at the trial.  The Tribunal  rejected  the application for inspection.  On appeal the High Court (1)  [1964] 6 S.C. R. 238. 183 held  that ballot papers had actually been called  for  from the Returning Officer and were before the Tribunal and there was  nothing in the Code of Civil Procedure which  prevented the  Tribunal from allowing inspection of the ballot  papers in  the  custody of the Court.  In the opinion of  the  High Court  the Tribunal rejected the application for  inspection without  any  adequate reasons.  On a  further  appeal,  the question for determination before this-Court was whether the election  Tribunal erred in declining to grant an order  for inspection of the ballot papers which had been, pursuant  to an  order  in  that behalf, lodged before  the  Tribunal  in sealed  boxes  by the Returning Officer.  This  Court  ruled that by the mere production of the sealed boxes, the  ballot papers  did not become part of the record and they were  not liable  to  be inspected unless the Tribunal  was  satisfied that  such inspection was in the circumstances of  the  case necessary  in the interests of justice.  The ratio  of  that decision  is that the inspection of ballot papers should  be allowed  only when the court thinks that it is necessary  in the interests of justice to do so.  In that case this  Court did  not  lay  down any hard and fast rule  as  to  when  an inspection of the ballot papers can be allowed. The  next case relied on is, the decision of this  Court  in Dr.  Jagjit  Singh v. Giani Kartar  Singh(1).   Therein  the question  of inspection of ballot papers was dealt  with  in paragraph  31  of  the judgment.  This  is  what  the  Court observed :               "The true legal position in this matter is  no               longer in doubt.  Section 92 of the Act  which               defines the powers of the Tribunal, in  terms,               confers  on it, by cl. (a), the  powers  which               are vested in a Court under the Code of  Civil               Procedure  when trying a suit, inter alia,  in               respect  of discovery and inspection.   There-               fore, in a proper case, the Tribunal can order               the  inspection  of the ballot boxes  and  may               proceed  to examine the objections  raised  by               the  parties  in  relation  to  the   improper               acceptance or rejection of the voting  papers.               But in exercising this power the Tribunal  has

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             to    bear   in   mind    certain    important               considerations.  Section 88 (1) (a) of the Act               requires  that  an  election  petition   shall               contain  a concise statement of  the  material               facts  on which the petitioner relies, and  in               very  case,  where  a  prayer  is  made  by  a               petitioner  for the inspection of  the  ballot               boxes,  the Tribunal must enquire whether  the               application  made  by the petitioner  in  that               behalf  contains  a concise statement  of  the               material  facts on which he relies.  Vague  or               general  allegations  that  valid  votes  were               improperly rejected, or invalid votes were (1)  A.I.R. 1966 S.C. 773. 184               improperly   accepted  would  not  serve   the               purpose which s. 8 8 (1) (a) has in mind.   An               application made for the inspection of  ballot               boxes  must  give material facts  which  would               enable the Tribunal to consider whether in the               interests of justice, the ballot boxes  should               be  inspected  or not.  In dealing  with  this               question, the importance of the secrecy of the               ballot  papers  cannot be ignored, and  it  is               always to be borne in mind that the  statutory               rules  framed  under the Act are  intended  to               provide adequate safeguard for the examination               of the validity or invalidity of votes and for               their proper counting.  It may be that in some               cases,  the  ends- of justice  would  make  it               necessary for the Tribunal to allow a party to               inspect  the  ballot boxes  and  consider  his               objections  about the improper  acceptance  or               improper rejection of votes tendered by voters               at  any given election but in considering  the               requirements of justice, care must be taken to               see  that  election petitioners do not  get  a               chance to make a roving or fishing enquiry  in               the ballot boxes so as to justify their  claim               that  the.  returned candidate’s  election  is               void.  We do not propose to lay down any  hard               and  fast  rule  in  this  matter  indeed,  to               attempt  to lay down such a rule would be  in-               expedient and unreasonable." The above observations succintly bring out the circumstances under  which an inspection can be ordered.   The  overriding test  laid  down there is the interests of  justice.   Facts naturally  differ  from  case  to  case.   Therefore  it  is dangerous  to  lay  down any rigid test  in  the  matter  of ordering  an inspection.  It is no doubt true that  a  judge while  deciding  the question of inspection  of  the  ballot papers  must bear in mind the importance of the  secrecy  of the  ballot papers.  The allegations in support of a  prayer for inspection must not be vague or indefinite; they must be supported  by material facts and prayer made must be a  bona fide one.  If these conditions are satisfied, the court will be  justified  in permitting inspection  of  ballot  papers. Secrecy  of  ballot  is  important,  but  doing  justice  is undoubtedly more important and it would be more so, if  what is in stake is the interests of the society. The  last  decision relied on by the appellant  is  Jitendra Bahadur  Singh  v.  Krishna Behari and ors.  (1).   To  this decision  one  of  us was a party.  There  an  elector  (1st respondent  in that appeal) challenged the election  of  the appellant to the Lok Sabha.  He alleged, inter alia, in  the

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election  petition  that there were improper  rejection  and improper reception of votes.  In the (1) [1970] 1. S.C.R. 852. 185 Schedule  to  the petition, he gave some  figures  of  votes improperly   rejected,,  as  well  as  accepted.    In   the verification  to the election petition, he stated  that  the concerned allegations were made on the basis of  information received  from  his workers and counting  agents.   It  was, however, not stated who those persons were and what was  the basis of their information.  No written objection was  filed during  the  counting  either to the acceptance  or  to  the rejection of any vote.  Nor was any application made for re- counting.   Before the trial of the election  petition,  the election  petitioners  filed an application to  inspect  the ballot  papers.   In the affidavit filed in support  of  the petition,  the  election  petitioner claimed  to  have  been present  on one of the days when counting went on  and  thus came to know about the improper acceptance and rejection  of ballot  papers.   This was not a claim put  forward  in  the election  petition.  The High Court allowed  the  inspection and  permitted  the  scrutiny solely on  the  basis  of  the allegations in the election petition and the affidavit filed by  the petitioner.  This Court reversing the decision  held that  on  the  facts established, the  High  Court  was  not justified  in allowing the inspection of the ballot  papers. This Court came to the conclusion that relevant  allegations were  vague  and  indefinite; they  were  not  supported  by material  facts  and there was no basis for  coming  to  the conclusion   that  inspection  of  the  ballot  papers   was necessary for doing justice between the parties. At  the hearing of the appeals we enquired with the  Counsel for  the  appellants whether the  allegation  regarding  the chemical treatment of the ballot papers can be proved in any other manner than, by inspecting the ballot papers.  We  got no satisfactory reply to our querry.  In the very nature  of things  the  allegations  in  question  can  be  proved   or disproved only by inspecting the ballot papers. The next question is whether it is necessary to inspect  all the  ballot papers as has been ordered by the  trial  judge. We think that a general inspection should not be  permitted, until  there  is  satisfactory proof  in  support  of  those allegations.  For finding out whether there is any basis for those  allegations,  it would be sufficient if  some  ballot papers,  say  about 600 out of those polled by each  of  the returned candidates are selected from different bundles,  or tins  in such a way as to get a true picture.  He  may  also select-about  200  ballot  papers  cast  in  favour  of  the election  petitioners  for  comparison.   All  the  selected ballot  papers  at  the first instance be  examined  by  the learned  judge  with the assistance of the Counsel  for  the parties as well as the parties.  If the learned judge  comes to  the conclusion that the matter should be further  probed into, he may take evidence on the points in issue  including evidence  of  expert witnesses.  Thereafter it  is  open  to 13--L 256 Sup CI/72 186 him  to direct or not to direct a general inspection of  the ballot  papers.   But  in doing so he  ’will  take  care  to maintain the secrecy of the ballot. Subject  to  the directions given above, these  appeals  are dismissed  but in the circumstances of the case we  make  no order as to costs in these appeals. V.P.S.                  Appeals dismissed.

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