1980 Supreme(SC) 281

SUPREME COURT OF INDIA
A.C. GUPTA AND D.A. DESAI, JJ.
S. Raghbir Singh Gill, Appellant
Versus
S. Gurcharan Singh Tohra and others, Respondents.
Civil Appeal No. 1035 of 1978
Decided on 9-5-1980.
 
Advocates appeared
U.R. Lalit, Sr. Advocate (M/s. O.P. Sharma, Vivek Seth and Miss Anil Katyar, Advocates with him), for Appellant; Mr. Hardev Singh, Sr. Advocate (M/s. R.S. Sodhi, M.S. Gupta and Miss Manisha Gupta, Advocates with him), for Respondents.
* Election Petn. No. 1 of 1976, D/- 8-6-1978 (Punj & Har)

Headnote:VOLUNTARY DISCLOSURE BY A VOTER HOW AND FOR WHOM HE VOTED. - SCOPE, AMBIT AND APPLICABILITY - scope applicability and ambit — secrecy of ballot - improper reception or improper refusal of any vote or the reception of any vote which is void - to ensure purity of election — provisions of this section - tampering of ballot papers - Slowness of the Supreme Court to interfere with the finding of fact based on appraisal of evidence by the High Court - Maintaining Secrecy of the Voting - Fair and free elections — election to be fairly conducted

       -held, there is nothing to prevent a voter, if he chooses without direct or indirect compulsion, to waive his privilege and disclose how he voted. There is no law which could expose him to penalty for it.

       -see decision in Raghubir Singh v. Gurucharan Singh, AIR 1980 SC 1362.

       – this Section cannot be interpreted or examined in isolation. Its scope, ambit and underlying object must be ascertained in the context of the Act in which it finds place and further in the context of the fact that this Act itself was enacted in exercise of power conferred by the Articles in Part XV titled “Elections” in the Constitution. An Act to give effect to the basic feature of the constitution adumbrated and boldly proclaimed in the preamble to the Constitution, viz, the people of India constituting into a sovereign, socialist, secular, democratic republic, has to be interpreted in a way that helps achieve the constitutional goal. Preamble sets out the political society which must be given all the importance. The goal on the constitutional horizon being a democratic republic, a free and fair election, a fountain spring and cornerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free an fair election for setting up democratic institution in the country is provided in the Act. The provisions of Section 94 have been cast in negative language. The important words are “shall be required”. The word “required” has an inbuilt element of compulsion. When it is said that no witness shall be required to state for whom he has voted at an election, on a pure grammatical construction uninhibited by any other consideration it would mean that the witness cannot be compelled against his will to disclose how he has voted or for whom he has voted, and held in Raghubir Singh v. Gurcharan Singh, AIR 1980 SC 1362. Any interpretation of Section 94 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, as held in Mahinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851 = 1978(2) SCR 272. The decision in Kesarananda Bharati v. State of Kerala, AIR 1973 SC 1461 followed.

       If Section 94 is interpreted to mean to be privilege to the voter to divulge or not to divulge how he voted and if he chooses not to divulge. This Section protects him in as much 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. But if he chooses to open his slips of his own free will without direct or indirect compulsion and waive or indirect compulsion and waive the privilege, nothing prevents him from disclosing how he voted. Nothing is there in any law to 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 as obligation of secrecy of those connection with the process of election and not on the voter. One can manipulate the vote cast by a voter and poor voter will be helpless and unable to assist the Court by his testimony which is the best direct evidence to establish for whom he voted and what mischief has been played with his vote. If the secrecy of ballot instead of ensuring free and fair elections is used, to draft 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 large principle of free and fair elections.

       – in order to ensure the purity of election it is better to so construe Section 100 as to embrace within its fold, all conceivable infirmities which may be urged for voiding an election, as held in Raghbir Singh v. Gurcharan Singh, AIR 1980 SC 1362.

       – once tampering is held proved if the circumstances permit and evidence of unquestionable character is available it would be perfectly legitimate for the court in an election petition to ascertain for whom the vote was cast before it was tampered with and if it can be ascertained as a valid vote it must be accepted as such. Any other approach has an inbuilt tendency to give an unfair advantage either to the candidate who himself might have indulged in tampering or someone who must have acted to his benefit, as held in Raghbir Singh v. Gurcharan Singh, AIR 1980 SC 1362.

       

       –In fact, in an election appeal under Section 116A of the Act, the Supreme Court does not ordinarily interfere with the finding of fact reached by the High Court particularly when the High Court comes to a conclusion on appreciation of all material evidence placed before it. As a corollary, the Supreme Court would be slow to interfere with such findings of fact based on appraisal of evidence unless there is something radically wrong with the approach of the learned Judge trying the election petition, as held in S. Raghubir Singh Gill v. S. Gurchan Singh, AIR 1980 SC 1362. See also decisions in Ramji Lal v. Ram Babu Maheshwari, AIR 1970 SC 2075; D. Gopala Reddy v. S. Bai Talpaliar 1972 (30) ELE 305 (SC); Sumitra Devi v. Sheo Shanker Prasad, AIR 1973 SC 215 = 1973 (2) SCR 920.

       

       – this section 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 purposes authorized by or under the law) communicate to any person any information calculated to violate such secrecy. As held in Raghbir Singh Gill v. Gurcharan Singh Tohra, AIR 1980 SC 1362, Section 128 has nothing to do with the voter disclosing for whom he voted.

       

       – fair and free election are the very foundation of democratic. Institutions and just as it is said that justice must not only be done but must also seem to be done; similarly elections said that justice must not only be done but must also seem to be done; similarly elections should not only be fairly and properly held but should also seem to be so conducted as to inspire confidence in the minds of the electors that everything has been above board and has been done to ensure free elections. It will be a sad day in the history of our country when the police and the Government Officers create even an impression that they are interfering for the benefit of one or the other candidate. This is particularly so if a candidate is holding an important position or assignment like respondent No. 1 who, at the material time was a Minister in the State, as in the case of Pampakavi Rayappa Belagali v. B.D. Jatti, AIR 1971 SC 1348 ; See also decision in Raghbir Singh Gill v. Gurcharan Singh, AIR 1980 SC 1362.