SUPREME COURT OF INDIA
Nayini Narasimha Reddy
Vs
Dr. K. Laxman and Others
Civil Appeal No. 2475 of 2006
(S. B. Sinha and P. K. Balasubramanyan, JJ)
05.05.2006
S. B. SINHA, J.
1. Leave granted.
2. Interpretation of Section 94 of the Respondent of the People Act, 1951 (for
short, 'the Act') is in question in this appeal which arises out of a judgment
and order dated 11-03-2005 passed by a learned Single Judge of the High Court
of Andhra Pradesh.
3. Election was held in Musheerabad Assembly Constituency on or about
20-04-2004. For conducting the said election electronic voting machines were
used. Whereas the appellant contested as a candidate of "Telangana Rashtra
Samiti', the first respondent contested the said election as a candidate of
'Bharatiya Janata Party'. Where the appellant herein polled 53553 votes; the
first respondent polled 53313 votes. The first respondent, thus, lost the
election by a margin of 240 votes. An election petition was filed by the first
respondent assailing the said election before the High Court of Andhra Pradesh
at Hyderabad, which was numbered as Election Petition No.4 of 2004. In the said
election petition, it was inter alia, contended:
"The Petitioner submits that P.S. No. 91 was located adjacent to the
Central Election Office of the Petitioner. As already stated several of the
party workers and sympathizers reside in that area. All those persons have cast
there vote in favour of the Petitioner. To establish the fact that the
Petitioner could not have polled zero votes in P.S. No 91 "
4. In the said election petition names and identity card numbers of various
persons mentioned in the voter list by way of example were mentioned. One of
the grounds taken in taken in the election petition was misalignment of the
machine; asserting that whereas both the parties polled nil votes from a
particular booth, the independent candidates polled a high number of votes.
5. In the said election petition an application was filed by the first
respondent praying for issuance of summons to some witnesses apart from those
whose names had been mentioned in the election petition, inter alia, stating:
"I humbly submit that a list of witnesses that are to be examined on my
behalf was filed on 17-1-2005. However, the name of certain of the voters in
P.S.No. 91 who had agreed to give evidence could not be included in the said
list of witnesses as there was very strong likelihood of threat and
intimidation. In that view of the matter, a Memo dated 17-1-2005 was filed into
Court humbly craving the leave of the Hon'ble Court to procedure the said
witnesses at a later date by filing an appropriate application. It is
respectfully submitted that non-disclosure of the names of the said witnesses
in the list already filed was only having regard to their safety. I submit that
there evidence is essential for establishing my case as it is specifically
contended by me in the Election Petition that I could not have secured zero
votes in P.S. No.91, Polling Station being located in a BJP stronghold and
several BJP workers, sympathizers including the wife, mother, sister-in-law and
other female relatives of my polling agent are listed as voters in P.S.No. 91,
which is exclusively reserved for female voters."
6. A memo was also filed before the High Curt on 17-01-2005, stating:
"The Petition humbly submits that at the time of preparing the Election
Petition certain of the voters in P.S.No.91 had agreed to give evidence. The
Petitioner has been informed by the aforesaid persons that they apprehend
threat and intimidation. In view of this petitioners humbly crave leave of this
Honourable Court not to disclose their names in the list of witnesses having
regard to their safety and prays that the Honourable Court permits production
of such witnesses during the trial as per the calendar fixed by this Honourable
Court. The petitioner undertakes to file the necessary application for
permission to produce the aforesaid witnesses as contemplated under law and
procedure. Hence this Memo."
7. A contention at the hearing of the said application for issuance of summons
as to whether having regard to the provision of Section 94 of the Act,
providing for "no witness or other person shall be required to state for
whom he has voted in an election", summons could be issued by the
Appellant before the High Court.
8. e said contention was rejected by the High Court by reason of the impugned
judgment.
9. Harish Salve, the learned Senior Counsel appearing on behalf of the
appellant, submitted that as the concept of 'secrecy of votes' goes to the root
of democracy, any summons taken out to compel a witness to depose before the
Court, would be invalid in law, as no witness can be asked to disclose as to in
whose favour he had caste his vote. Strong reliance in this behalf has been
placed on S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others
10.Mr. L. Nageshwar Rao, the learned Senior Counsel appearing on behalf of the
first respondent, on the other hand, inter alia, contended that the voters
merely enjoy a privilege in terms of Section 94 of the Act; but the same would
not mean that the courts cannot be asked to issue summons therefor. Drawing our
attention to the fact that in the application for summoning some witnesses, it
was contended that the same was filed in support of the grounds taken in the
election petition and as such it would not be correct to contend that the
summons on the witnesses were sought to be served only for the purpose of
obtaining disclosures from them as to in whose favour they had voted in the
election.
11.Section 94 of the Act reads as under:.
"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."
12. Tion 94 does not provide for a total embargo on a party to an election
petition to cite a voter as a witness. What is prohibited is that he cannot be
required to state to whom he had voted at an election.
13. Recy of ballots indisputably goes to the root of democracy, but the same in
our opinion may not itself be a ground to refuse issue of summons to the
witnesses, Section 94 of the Act merely confers a privilege upon a voter. He
may even waive his right. It is not in dispute that any person can be procedure
as a witness by the parties to an election petition. Witnesses so produced on
behalf of the parties without any summons being issued would be at liberty to
disclose in the court as to in whose favour he had exercised his right of
franchise. It is, therefore, evident that the question as to whether a witness
will exercise his right/privilege conferred in terms of Section 94 of the Act
is a matter of volition.
14. is not thing to say that the civil court while issuing a summon must:
exercise its jurisdiction in terms of sub- rule (2) of Rule 1 of Order XVI of
the Code of Civil Procedure but it is another thing to say that the court would
refuse to summon the witness only because a question as regard exercise of the
privilege of the witness may arise. The court may not refuse to exercise its
jurisdiction only on the ground that by reason thereof the privilege of a voter
may be violated.
15. Is, therefore, necessary to notice the nature and extent of such a
right.Section 94 of the Act merely states that no witness or other person shall
be required to state for whom he has voted at an election. When questioned, Mr.
Salve did not dispute that if a witness is summoned for proving or disproving
one or the other grounds taken in the election petition, or the defence raised
by the elected candidate, summons may be issued and while examining the said
witness in court, a question may also be put to him as to for whom he had voted
at an election. If such a question is put to him, indisputably, he may exercise
his right not to answer the same. The court shall evidently inform him about
the said right but by reason thereof no conclusion can be arrived at that the
jurisdiction of the court in the matter of issuance of summons itself stands
abrogated or restricted. The statute lays down that a witness would not be
required to answer a question to disclose as to in whose favour he had
exercised his right of franchise either before a court of law or before an
authority; but he can exercise the said right only as a witness. He, therefore,
must appear before the court, or before an election tribunal either as a
witness of a party whether summoned or not. It is not in dispute that he waive
the said right. If that be so, it is beyond our comprehension as to how the
right of a party to the Us to summon a witness can be denied only on the ground
that the issuance of summons by the court itself would be violative of Section
94 of the Act.
16. Sub-rule (2) of Rule 1 of Order XVI of the Code of Civil Procedure
indisputably require the party to file an application for obtaining any summons
for the attendance of any person stating therein the purpose therefore, but the
same would not mean thatthe court would refuse to exercise its jurisdiction
only because one of the purposes disclosed may be that the witness may be asked
a question as to in whose favour he had exercised his right of franchise. The
purpose which is required to be disclosed in such an application for summoning
a witness is only with a view to apprise the court as to whether the evidence
which may be adduced, would be relevant for the purpose of determining the
issues and not for any other purpose.
17.may be true that if a person to whom summons is issued appears in the court,
the Court may require him to give evidence or produce any document in his
possession or power, as envisaged under Order XVI of the Code of Civil
Procedure; but the same again would not mean that if thereby a mere possibility
exists that the secrecy of voting thereby may be infringed, the summons would
not be issued at all. We, for the aforementioned reasons, do not agree with the
contention of Mr. Salve.
18.S aghbir Singh Gill (supra), this Court laid down the law in the following
terms:
"14. The marginal note of Section 94 says "secrecy of voting not to
be infringed". Section 128 of the Act casts an obligations 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 purpose authorised by
or under any law) communicated to any person any information calculated to
violate such secrecy. Rule 23(3) of the Conduct of Election Rules, 1961
("Rules" for short) imposes a duty to conceal the serial number of
the ballot paper effectively before it is issued at election in any local
authorities constituency or by Assembly members. Similarly, Rules 23(5(a) and
(b) of the Rules provide for effectively maintaining the secrecy of the postal
ballot papers in the manner prescribed therein. Rules 31(2), 38(4), 39(1), (5),
(6) & (8), 40(1) second proviso, 38-A(4), 39-A(l) & (2) and similar
other rules provide for maintaining secrecy of ballot. It cannot be gainsaid
that various provisions referred to above ensure secrecy of ballot and even
Section 94 has been enacted to relieve a person from a situation where he may
be obliged to divulge for whom he has voted under testimonial compulsion.
Secrecy of ballot can be appropriately styled as a postulate of constitutional
democracy. It enshrines a vital principal of parliamentary institutions set up
under the Constitution. It subserves a very vital public interest in that an
elector or a voter should be absolutely free in exercise of his franchise
untrammelled by any constraint which includes constraint as to the disclosure.
A remote or distinct possibility that at some point a voter may under a
compulsion of law be forced to disclose for whom he has voted would act as a
positive constraint and check on his freedom to exercise his franchise in the
manner he freely chooses to exercise. Therefore, it can be said with confidence
that this postulate of constitutional democracy rests on public policy."
19. A question was posed as to whether Section 94 of the Act creates an
absolute rohibition and it was answered in the following terms:
"18. It was said that Section 94 lends itself open to one construction
alone. It is cast in negative language which usually is treated as absolute.
Proceeding further it was said that this negative provision admits of, no
exception and enacts and absolute prohibition. Provisions cast in negative
words are generally treated as absolute admitting of no exception. But this is
not a universal rule. The words "negative" and
"affirmative" statutes mean nothing in particular. The question is,
what was the intendment? Emphasis is more easily demonstrated when statue is
negative then when it is affirmative but the question is one of intendment (see
Mayor of London v. R.6-.) IF language is open to two constructions one must
ascertain the intendment, the mischief sought to be remedied and the remedy
provided to cure the mischief (see Victoria Sporting Club Ltd. v. Hannan 7-).
and in such a situation the court must escalate in favour of that construction
which carries out the intendment behind enactment and accords with reason and
fair play.
19. Two possible constructions are, firstly, that the section casts an absolute
prohibition and seals the mouth of the voter permanently and admits of no
exception in which he can divulge his vote, and secondly, that it is a
privilege of the voter to disclose his vote if he voluntarily chooses to do so
but he cannot be compelled by court or any other authority to divulge his vote.
Which of the two constructions advances the object of enactment.
20. 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 inasmuch 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. Section 128 has nothing to do with the voter
disclosing for whom he voted. It casts an obligation of secrecy on those
connected with the process of election and not on the voter."
20 said decision, therefore, does not support the contention of Mr. Salve.
21recy of ballots was necessary for ensuring free and fair elections; but by reason
thereof the concept of purity of election cannot be given a go by.
22 Court in A. Neelalohitadasan Nadar v. George Mascrene and others 9.]emphasized on the principle of purity of elections
holding that Section 94 of the Act cannot be pressed into service to suppress a
wrong coming to light and to protect a fraud on the election process. Therein
this Court followed 5. Raghbir Singh Gill (supra).
23. the reasons aforementioned, we are of the opinion that there is no merit in
this appeal, which is dismissed accordingly, No costs.
JUDGMENT (Per P.K. Balasubramanyan, J.)
I respectfully agree with the reasoning and conclusion in the judgment just
pronounced by my learned brother.
2. Section 94 of the Representation of the People Act, 1951 (for short, the
Act) provides that a voter is an election, when summoned as a witness in an
election petition, cannot be compelled to disclose for whom he has voted. The
words, "shall be required" place a bar on any such compulsion. The
Court, as of right or by authority, cannot compel the voter summoned as a
witness, to disclose his preference. The sub-heading to Section 94 of the Act
indicates that the bar is intended to preserve the secrecy of the ballot.
3. The rule against testimonial compulsion, in a case governed by Section 94 of
the Act, will have to be approached from two angles. The initial question is
whether the witness would have to incriminate himself while giving evidence.
The privilege against self-incrimination in the words of Lords Goddard L.J. is
that:
"No one is bound to answer any question in civil or criminal proceedings
if the answer thereto would in the opinion of the judge have a tendency to
expose the deponent to any criminal charge, penalty of forfeiture which the
judge regards as reasonably likely to be preferred or sued for"
(See. Blunt v. Park Land Hotel 1942 Indlaw CA 3
at page 257.]
4. The privilege against self-incrimination is to be claimed by the witness.
The right becomes available only after the witness has taken the stand and a
question that offends the privilege is put to him. A prospective witness or
some other person (as in the present case) cannot raise such an issue in
anticipation of an apprehended breach of privilege against self-incrimination.
Phipson referring to a number of authorities on the point states:
"It may be taken by the witness in refusing to answer a question; the
witness cannot refuse to go into the witness box: he can only claim privilege
after he has gone into the witness box and been sworn and the question put. The
court must determine from the circumstances of the case and the nature of the
evidence the witness is called to give whether there are grounds for the
privilege being invoked and ground to "apprehend danger." The mere
fact that a party swears that his answer would tend to criminate him is not
conclusive. Once the danger is made apparent great latitude should be allowed
to a witness asked questions in. giving evidence in judgment for himself of the
effect of any particular question.
The privilege must, unlike other forms of privilege, be claimed on oath by the
person asserting it on his own behalf, not his solicitor. Nevertheless, it
might be necessary for evidence to be led from others to support the claim. It
is not necessary to explain precisely why the evidence would incriminate, as
that might undermine the privilege."
[Phipson on Evidence, 15lh Edn., page 564]
It is clear that Section 94 of the Act only confers a privilege on the witness
and that he would be at liberty to waive it and give evidence on his electoral
preference. The argument based on Section 94, at the instance of the appellant,
on the ground of a perceived threat of self-incrimination of the prospective
witness, is misconceived. The appellant cannot thrust the privilege under Sec.
94 of the Act on the prospective witness.
The appellant cannot deprive the witness of the right to take his own decision
in the matter as and when the takes the witness stand and a question on his
electoral preference is put to him.
5. The second question is whether, the evidence of the witness would breach the
secrecy of the election process. It has been held by this Court in 5. Raghbir
Singh Gill v. . Gurcharan Singh Tohra and others and A. Neelalohithadasan Nadar
v. George Mascrene and others that the purity of the election process is more
important then the privilege conferred by Section 94 of the Act. This Court has
recognized that the secrecy of voting could be breached to subserve a large
public good, namely, to prevent a fraud on the election process. My learned
brother has dealt with this aspect and I am in agreement with him.
6. In the present case, we must also not two incidental aspects that stand in
the way of accepting the plea of the appellant. The arguments based on Section 94
of the Act are not being raised by the prospective witness but by a third
person. The stage at which the plea is raised i.e. even before the witness has
actually taken the witness stand is also significant. The appellant cannot seek
to prevent the witness from taking the stand. He cannot also seek to curb the
power of the Court to summons the witness.
7. In the above situation, neither the privilege against self-incrimination nor
the secrecy of the election process stand in the way of a voter being summoned
as a witness in an election petition. The power of the Court under Order XIV of
the Code of Civil Procedure, 1908, on application by the parties or suo moto to
summon any person for his attendance in Court and its power to summon any
person to produce any document remains unaffected by Section 94 of the Act. The
power of the Court to summon a witness is one thing, the privilege of a witness
not to answer a question put to him is another. The witness would be free to
claim privilege under Section 94 of the Act and can refuse to reveal for whom
he has voted. However, if he is willing to disclose his electoral preference he
is entitled to do so.
9. Hence, I too would dismiss the appeal.