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SUPREME COURT OF INDIA
N.V. RAMANA, SANJIV KHANNA, KRISHNA MURARI, JJ.
Laxmi Singh and Others – Appellants
Versus
Rekha Singh and Others – Respondents
Civil Appeal Nos. of 2020 (Arising Out of Special Leave Petition (C) Nos. 10733-10734 of 2019
Decided On : 19-06-2020
(A) Representation of the People Act, 1951 – Section 94 – Secrecy of ballot – Even a remote or distinct possibility that at some point, a voter under compulsion of law can be force to disclose for whom she has voted would act as a positive constraint and a check on freedom to exercise of franchise – It is policy of law to protect right of voters to secrecy of ballot – This right is something which can be claimed only by voter himself against unwarranted disclosure – Section 94 of RP Act enacts a privilege in favour of voter in that no one can compel him to disclose for whom she had voted but privilege ends when voter decides to waive privilege and instead volunteers to form doing so nor can a complaint be entertained from any, including person who wants to keep voter’s mouth sealed as to why she disclosed for whom she voted – Once voter chooses to waive privilege and volunteers to disclose, there is no contravention of Section 94 or any other provision of RP Act – There is no illegality involved in disclosure by voter – Secrecy of voting is an adjunct to principle of purity of election – Secrecy cannot stand aloof, in isolation or in confrontation to foundation of free and fair elections – When it comes to interpretation of statutory provisions relating to election law, jurisprudence on subject mandates strict construction of provisions. (Paras 8, 11 and 13)
(B) Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 – Section 28(8) – Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules 1966 – Rule 4 – Removal of Panchayat Adhyaksha – No-confidence motion – Principle of secrecy of ballots is an important postulate of constitutional democracy whose aim is achievement of this goal – Voting in a no-confidence motion would take place by secret ballot requires detailed argumentation and analysis – Whether same is illegal de jure, or is allowable, or depends on facts and circumstances of each case taking into account impact on principle of free, fair and pure elections is a question where reasoning of High Court is somewhat lacking – Ends of justice will be met if Motion is put to revote at a meeting of Zila Panchayat by way of secret ballot with District Judge, Allahabad himself or his nominee Additional District Judge, Allahabad, acting as Presiding Officer on a date and time to be fixed by District Judge, which shall not be later than two months from today – This would be a just and fair direction in factual matrix of present case given respective contentions and stand of parties. (Paras 14 and 16)
Facts of the case:
Sixty-four out of the ninety-two elected members of the Zila Panchayat, Prayagraj, Uttar Pradesh had on 1st October 2018 moved a motion of no confidence against Panchayat Adhyaksha, Ms. Rekha Singh, first respondent. In the meeting of the Zila Panchayat held on 25th October 2018, forty-eight out of fifty-one members present had voted in favour of Motion, two members had voted against the Motion and one vote was rejected as invalid. On the same day itself, the Presiding Officer had declared that the Motion was passed by majority of more than half of the total elected members of the Zila Panchayat.
Findings of the Court:
One of the fundamental principles of election law pertains to the maintenance of free and fair elections, ensuring the purity of elections. The principle of secrecy of ballots is an important postulate of constitutional democracy whose aim is achievement of this goal. The question of whether the waiver of secrecy by individual voters is allowable during the election process, in a circumstances such as the present, where the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 and the 1966 Rules mandate that voting in a no confidence motion would take place by secret ballot requires detailed argumentation and analysis.
Result : Appeals disposed of with observations.
JUDGMENT :
SANJIV KHANNA, J.
Leave granted.
2. Sixty-four out of the ninety-two elected members of the Zila Panchayat, Prayagraj, Uttar Pradesh had on 1st October 2018 moved a motion of no confidence (“the Motion”, for short) against the Panchayat Adhyaksha, Ms. Rekha Singh, the first respondent before us.
3. The District Judge, Allahabad had thereupon nominated the Additional District Judge, Allahabad to act as the Presiding Officer in the meeting of the Zila Panchayat summoned to consider the Motion.
4. In the meeting of the Zila Panchyat held on 25th October 2018, forty-eight out of fifty-one members present had voted in favour of the Motion, two members had voted against the Motion and one vote was rejected as invalid. On the same day itself, the Presiding Officer had declared that the Motion was passed by majority of more than half of the total elected members of the Zila Panchayat.
5. On challenge by the first respondent, the High Court of Judicature at Allahabad, vide the impugned judgment dated 13th March 2019, has set aside the minutes of the Zila Panchayat meeting dated 25th October 2018 approving the Motion, on the ground that some of the members had violated the rule of secrecy of ballot. Reliance was placed on the CCTV footage that was played in the Court, to observe that some of the members had displayed the ballot papers or by their conduct revealed the manner in which they had voted.
6. Section 28(8) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 states that a motion of no confidence shall be put to vote in the prescribed manner by secret ballot. Rule 4 of the Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules 1966 (for short, the ‘1966 Rules’) casts a duty and obligation on the Presiding Officer to cause such arrangements to be made as would ensure secrecy of the ballot. Our attention was also drawn to sub-rule (2) of Rule 7 of the 1966 Rules, which requires the members to put a specified mark on the ballot paper to indicate their choice without disclosing their names and proscribes any signature or any other mark by which the secrecy of the ballot may be infringed. Further, we may also note sub-rule (3) of Rule 7 of the 1966 Rules, which requires members to fold their ballot paper to conceal the mark made by them and to put the same in the ballot box. The High Court held in the impugned judgment that there was a violation of Rules 4 and 7 of 1966 Rules, and further held that disclosure of vote during the non-confidence motion was in violation of the statutory scheme governing the same in the State and would affect the purity of elections. The High Court therefore set aside the minutes of the non-confidence motion passed on 25th October 2018.
7. Challenging the above finding, the Petitioner before us have submitted that the impugned judgment is not in line with the holdings of this Court regarding secrecy of voting, particularly the Constitution Bench decision of this Court in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Others, 1980 Supp SCC 53.
8. The Petitioners claimed that the principle of secrecy of ballot is based on public policy aimed at ensuring that the voter cast their vote without fear or favour and without any apprehension of disclosure. These aspects were highlighted in S. Raghbir Singh Gill (supra), wherein reference was made to Section 94 of the Representation of the People Act, 1951 (‘RP Act’ for short), which states that no witness or other person shall be required to state for whom he was voted in an election. Elucidating the importance of the provision, secrecy of ballot was appropriately styled as a postulate and keystone in the arch of constitutional democracy as the electorate or the voter should be absolutely free in exercise of franchise untrammelled by any constraints, including a constraint as to disclosure. Even a remote or distinct possibility that at some point, a voter under compulsion of law can be force to disclose for whom
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