Document Fragment View

Matching Fragments

Thereafter Hon'ble Apex Court in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others reported in (1989)1 SCC 526 has taken the view that recounting of votes cannot be directed as matter of course. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle, unless prima-facie case is made out, it cannot be broken. Relevant extract of the said judgment is being quoted below:

" Thus, the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima- facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege the substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interest of justice, a Tribunal or Court should not order the recount of votes."

Hon'ble Apex Court in the case of Vadivelu v. Sundaram, 2000 (8) SCC 355 has reiterated the same principles in paragraph 16, which is being quoted below:

"16. 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 recount 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 recount 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 recount of votes under such circumstances to do justice between the parties."
"Concededly the following factors are relevant for directing recounting of votes:
(i) prima facie case must be established;
(ii) material facts must be pleaded stating irregularities in counting of votes;
(iii) a roving a fishing inquiry shall not be directed by way of an order for recounting of votes;
(iv) an objection to the said effect should be raised; and
(v) secrecy of ballot papers should be maintained."
17. In view of the afore-going discussion, the appeal is allowed; the order passed by the Election Tribunal ordering re-count of the ballot papers, and affirmed by the High Court is set aside. The appellant shall be entitled to costs, quantified at Rs.20,000/-."

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 recount 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 recount 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 recount of votes under such circumstances to do justice between the parties.