Distinction in manner of voting held against principle of fundamental rights of equality and equal prosecution.

All these applications under Article 226 of the Constitution raise a common question of law as to the validity of certain rules made by the Government under the Madras Village Panchayats Act, 1950, and published in the Fort St. George Gazette, dated 17th September, 1952, in so far as they provided for open voting at elections to certain panchayats.

The Madras Village Panchayats Act provides for the constitution for each village in the State of Madras a panchayat (section 4(1)). The panchayats are classified into two classes called class I and class II. Panchayats with jurisdiction over a population estimated at not less than five thousand and with an estimated annual income of not less than ten thousand rupees come under class I. The other panchayats fall within class II (section 5(1)(a) and (b)). The power of classification is with the Government, who may from time to time alter’ the classification of any panchayat.

Any decision made by the Government regarding classification cannot be questioned in any court of law (section 5(3)). Section 7 provides: “The members of the Panchayat shall be elected in such manner as may be prescribed”. For the purpose of electing members to a panchayat, the village is divided into wards, a class I panchayat village into not less than five wards, and a class II panchayat village into two wards if it has a population of 1,000 or less, and if it has a population of more than 1,000 into not more than five wards (section 9). Under section 71(1), the Government is bound to set apart every year a sum not being less than twelve and a half per cent of the total land revenue (including water-cess) collected in the state during that year and distribute such sum in the prescribed manner as grants to class II panchayats on the basis of their population. One of the items of expenditure from a panchayat fund is the election expenses including the cost of the preparation and revision of the electoral roll, the conduct of election to the panchayat, and the maintenance of the election establishment. The cost of maintenance of the election establishment shall include the pay, pension and leave allowance, it any, of the officers and servants of the Government or of any other authority, employed in the preparation and revision of the electoral roll and in the conduct of the elections. Section 112 confers on the Government power to make rules generally to carry out the purposes of the Act, and in particular as to all matters relating to electoral rolls or elections, not expressly provided for in the Act In exercise of the powers conferred by sections 7, 10(3) and 112(2)(i) of the Act the Government made rules for the conduct of elections of members to panchayats, and they were published in the Fort St. George Gazette, dated 6th August, 1951.

The only material rule with which we are concerned is rule 1(2) which says: “The election of members shall be by secret ballot”. In exercise of the same power, the Government made certain amendments to these rules relating to the conduct of elections by G.O.Ms.No.1799, L.A., dated 8th September, 1952, published in the Fort St. George Gazette, dated 17th September, 1952. The rules are divided into two parts, Part I and Part II. The rules in Part I apply to all class I panchayats and to such other panchayats as may be notified in this behalf by the election authority. The rule providing for the election of members by secret ballot is made applicable only to such panchayats. The rules contained in Part II apply to all panchayats not governed by the rules in Part I. These rules provide for open voting. Rule 9 runs thus:-

“If a poll has to be taken, the presiding officer shall ascertain by show of hands or otherwise now many of the electors present and entitled to vote at the election for the ward are in favour of each of the candidates in respect of whom the poll is taken, and shall declare the candidate or candidates to whom the largest number of votes have been given to have b