V. Chitambaresh, J.

1. Shall a witness be required to state for whom he has voted at an election? Is there any statutory embargo for disclosing how he voted? The issue arises under the Kerala Panchayat Raj Act, 1994 (the 'Act' for short).

2. The petitioners have been summoned to tender evidence as witnesses in an election petition filed challenging the election to Ward No. 11 of Dhalampady Grama Panchayat in Kasaragod district. The election has been called in question under Section 102 (1) (d) (iii) of the Act on the ground that eight voters have indulged in double voting and that there has been an improper reception of their void votes. The main thrust in the election petition is that the eight voters have voted in more than one constituency of the same level in violation of Section 76 (3) of the Act. The election petition seeks to set aside the election of the second respondent and declare the first respondent as the duly elected candidate after eschewing the eight void votes. The petitioners are two out of the eight voters who challenge in this Original Petition the witness summons issued to them in O.P. No. 15/2010 on the file of the court of the Munsiff of Kasaragod.

3. The petitioners contend that they would be forced to depose before court to whom they have cast their votes if summoned as witnesses infringing the secrecy of voting postulated under Section 96 of the Act. The petitioners maintain that the court below should have acted with circumspection in issuing witness summons to them which has the deleterious effect of affecting their privilege. The petitioners assert that the secrecy of the ballot should be maintained to ensure free and fair elections and that they should not be compelled to tender evidence in court. The witness summons issued to the petitioners are sought to be quashed on that score in this Original Petition filed under Article 227 of the Constitution of India.

4. I heard Mr. V.V. Asokan, Advocate on behalf of the petitioners whose arguments were really novel.

5. Section 96 of the Act reads as under:

"96. Secrecy of voting not to be infringed--No witness or other person shall be required to state for whom he has voted at an election."

This is in pari materia with Section 94 of the Representation of the People Act, 1954 which reads as under:

"94. Secrecy of voting not to be infringed-No witness or other person shall be required to state for whom he has voted at an election."

The Supreme Court has in S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and others [AIR 1980 SC 1362] held as follows:

"If Section 94 is interpreted to mean to be a privilege of the voter to divulge or not to divulge how he voted and if he chooses not to divulge, Section 94 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. When it is said that no witness or other person shall be required to state for whom he has voted at an election, it only means that both in the court when a person is styled as a witness and outside the court when he may be questioned about how he voted though he would not have the character or the qualification of a witness yet in either situation he is free to refuse to answer the question without incurring any penalty or forfeiture. That guarantees the vital principle behind secrecy of ballot in that the voter would be able to vote uninhibited by fear. But if he chooses to open his lips of his own free will without direct or indirect compulsion and waive the privilege, nothing prevents him from disclosing how he voted. No provision was brought to our notice which would expose him to any penalty if a voter voluntarily chooses to disclose how he voted or for whom he voted."

6. Again the Supreme Court has in Nayini Narasimha Reddy Vs. K. Laxman [(2006) 5 SCC 239] held as follows:

"Secrecy of ballots indisputably goes to the root o