Allahabad High Court
Smt. Sushma Devi Wife Of Sri Kali Charan vs State Of U.P. Through Secretary ... on 29 March, 2007
Equivalent citations: 2007(4)AWC3669, AIR 2007 (NOC) 1916 (ALL.) = 2007 (4) ALJ 169, 2007 (4) ALL LJ 169, 2007 (5) ABR (NOC) 809 (ALL), 2007 A I H C 2223, (2008) 104 REVDEC 57, (2007) 4 ALL WC 3669
Author: Tarun Agarwala
Bench: Tarun Agarwala
JUDGMENT Tarun Agarwala, J.
1. The preamble to our Constitution provides the citizen of India a democratic Constitution which provides for holding free, fair and peaceful elections. Purity of election and secrecy of ballot are the two central pillars which supports our democracy, which at times are complimentary to each other and, at another point of time, stand in confrontation which each other.
Sir Winston Churchill once stated:
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 voluminous discussion can possibly diminish the overwhelming importance of the point.
2. This statement was adopted by the Supreme Court with a slight variation in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors. , wherein the Supreme Court held -
nothing can diminish the overwhelming importance of that cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen choosing his masters for governing the country for the period prescribed by it.
The Supreme Court in the aforesaid case further held-
Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips.
and at another place held But this basic postulate of constitutional democracy, namely, secrecy of ballot was formulated not in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining constitutional democracy, viz., free and fair election" and "If free and fair election is 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 moth must be complimentary to each ; other and co-exist or one must yield to the other to serve the larger public interest.
At yet another place, the Supreme Court held-
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.
and again held-
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.
3. On the question on recounting of votes, the position of law has now been crystallised by a plethora of decisions of this Court as well as by the Supreme Court. Without burdening this judgment with a series of decisions, the position of law which has been crystallised by the Supreme Court in Bhabhi v. Sheo Govind and Ors. is-
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount.
(4) That the Court must come to the conclusion that in order to grant I' prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void and (6) That on the special facts of a given case sample inspection 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.
4. A Full Bench of this Court in Ram Adhar Singh v. District Judge, Ghazipur and Ors. 1985 ACJ 19 held that the authorities while hearing the election petition under the provision of U.P. Panchayat Raj Act can be permitted to look into or can direct the inspection of the ballot papers only upon the existance of two conditions, namely;
1. that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground; and
2. the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties.
5. In M. Chinnasamy v. K.C. Palanisamy and Ors. , the Supreme Court held-
The necessity of " maintaining the secrecy of ballot papers" should be kept in view before a re-counting is directed to be made. A direction for re-counting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.
6. In Vadivelu v. Sundaram and Ors. , the Supreme Court again reiterated-
The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties.
7. In Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan that an order for recounting cannot be made as a matter of course, unless the election petition had laid the foundation and there was clinching evidence to support the case set up by the election petitioner.
8. In the present case, the petitioner has prayed for a writ of certiorari for the quashing of the order dated 23.8.2006 passed by the Additional District Judge allowing the application of respondent No.5 for summoning the original ballot papers for inspection. The petitioner was elected as the Pramukh of the Development Block Dataganj in district Budaun. The respondent No.5 filed an election petition alleging that out of the total vote cast, one vote was rejected and one ballot paper had a pre existing mark which was taken into consideration and which should have been rejected. It was also alleged that there was a collusion between the respondent No.5 and the Returning Officer. It has come on record that the petitioner obtained a total number of 28 votes whereas the respondent No.5 obtained 27 votes, and therefore, the margin of defeat was by one vote. The petitioner appeared and contested the election petition and filed her written statement denying the allegations levelled in the plaint. During the pendency of the proceedings, the respondent No.5 moved an application alleging that since the matter was now ready for the evidence of the parties, the ballot papers should be summoned so that the evidence could be led. The petitioner objected to the/aid application and submitted that no valid reason had been given for summoning the ballot papers. The Additional District Judge after considering the submission of the parties allowed the application by an order dated 23.8.2006 and summoned the original ballot papers.
9. Heard Sri Ravi Kiran Jain, the learned Senior Counsel assisted by Sri Rahul Sahai, the learned Counsel for the petitioner and Sri Ajai Bhanot and Sri R.P.S. Chauhan, the learned Counsel for the respondent No. 5 and the Standing Counsel for the remaining respondents.
10. The Court below while allowing the application has considered the provision of Order 13 Rule 10 of the C.P.C. for summoning the ballot papers. In my opinion, the court below has committed a manifest error in allowing the application for summoning the ballot papers under Order 13 Rule 10 of the C.P.C. There was no material placed in the application to show that the summoning of the ballot papers was necessary for the purpose of giving evidence. Merely because evidence was required to be led, the original documents, namely, the ballot papers could not be summoned nor could such a method be adopted for the inspection of the ballot papers while allowing a witness to give his evidence. Unless the defeated candidate is able to substantiate by means of evidence that a prima facie case existed for the inspection of the ballot papers, the ballot papers cannot be summoned merely on the ground that evidence was required to be given and that the production of the documents was necessary for the purpose of evidence.
11. The right of a defeated candidate to assail the validity of the election result and seek recounting of the votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct. In the present case, the petitioner has not adduced any evidence till this stage nor the allegations are of a such a compulsive nature which could make the court to reach a prima facie satisfaction or justification for the production of the original ballot papers for inspection. Before inspection could be made or the original ballot papers could be summoned, there must be clinching evidence to support the case set up by the respondent No.5 in the election petition. In the present case, evidence is yet to come and the allegation set out in the election petition is yet to be proved by respondent No. 5. Consequently, the Court below committed a manifest error in allowing the application for the summoning of the ballot papers.
12. For the aforesaid reasons, the impugned order cannot be sustained and is quashed. The writ petition is allowed.