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Supreme Court of India
Laxmi Singh vs Rekha Singh on 19 June, 2020Author: Sanjiv Khanna
Bench: A.M. Khanwilkar, Dinesh Maheshwari, Sanjiv Khanna
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2020
(ARISING OUT OF SPECIAL LEAVE PETITION (C) NOS. 10733-10734 OF 2019)
LAXMI SINGH AND OTHERS ….. APPELLANT(S)
VERSUS
REKHA SINGH AND OTHERS ….. RESPONDENT(S)
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 1 st 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
Signature Not Verified
Additional District Judge, Allahabad to act as the Presiding Officer
Digitally signed by
DEEPAK SINGH
Date: 2020.06.19
15:30:26 IST
Reason:
in the meeting of the Zila Panchayat summoned to consider the
Motion.
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 1 of 11
4. In the meeting of the Zila Panchyat held on 25 th 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 13 th 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
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 2 of 11
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,1.
1
1980 Supp SCC 53
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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 she has voted would act as a positive constraint and a
check on the freedom to exercise of franchise. It is the policy of
law to protect the right of voters to secrecy of the ballot, albeit this
right is something which can be claimed only by the voter himself
against unwarranted disclosure. Section 94 of the RP Act enacts
a privilege in favour of the voter in that no one can compel him to
disclose for whom she had voted but the privilege ends when the
voter decides to waive the privilege and instead volunteers to
disclose as to whom she had voted. No one can prevent a voter
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 4 of 11
form doing so nor can a complaint be entertained from any,
including the person who wants to keep the voter’s mouth sealed
as to why she disclosed for whom she voted. Once the voter
chooses to waive the privilege and volunteers to disclose, there is
no contravention of Section 94 or any other provision of the RP
Act. There is no illegality involved in disclosure by the voter.
9. The Petitioners submitted that the High Court, notwithstanding the
aforesaid dictum, has wrongly held that the voluntary waiver
principle could not apply to the case in hand with respect to the
members of the Zila Panchayat voting on a no confidence motion.
Whether such a proposition is correct or not would have to be
tested in an appropriate case, and we desist form making any
observations on the same as the question of law itself was not
fully argued before us. However, the Petitioners submitted that
certain principles ought to be highlighted regarding this important
question.
10. The Petitioners contented that this Court, on several occasions,2
and as recently as in Shiv Sena v. Union of India,3 has directed
that a vote of confidence or a trust vote, as the case may be, to
establish majority on the floor of the House should be conducted
2
G. Parmeshwara v. Union of India, (2018) 16 SCC 46, Union of India v. Harish Chandra Singh
Rawat, (2016) 16 SCC 744.
3
(2019) 10 SCC 809
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 5 of 11
by an open ballot and that the same should be captured in a video
recording so as to ensure transparency. Earlier, in Kuldip Nayar
and Others v. Union of India and Others,4 a Constitutional
Bench of five judges of this Court had inter alia examined and
upheld the constitutional validity of open ballot system which was
introduced in the RP Act vide an amendment brought by Act 40 of
2003 for elections to the Council of States. The petitioner therein
contended that the open ballot system violates the principle of
secrecy which is the essence of free and fair elections and also
the voter’s freedom of expression which is one of the basic
features of the Constitution. Rejecting the challenge to the
constitutional validity, the Constitutional Bench under Issue II:
Secrecy of Voting had held that:
“404. This Court found that Section 94 was meant as a
privilege of the voter to protect him against being
compelled to divulge information as to for which
candidate he had voted. Nothing prevents the voter if
he chooses to open his lips of his own free will without
direct or indirect compulsion and waives the privilege.
It was noticed that the provision refers to a “witness or
other person”. Thus, it is meant to protect the voter
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. It was found that no provision
existed as could expose the voter to any penalty if he
voluntarily chooses to disclose how he voted or for
whom he voted.
xx xx xx
4
(2006) 7 SCC 1
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409. Thus, even under the elections that continue to
be based on the principle of secrecy of voting, it is for
the voter to choose whether he wishes to disclose for
whom he had voted or would like to keep the secrecy
intact. If he so chooses, he can give up his privilege
and in that event, the secrecy of ballot should yield.
Such an event can also happen if there is fraud,
forgery or other illegal act and the disclosure subserves
the purpose of administration of justice.”
11. They also referred to the decisions in Kuldip Nayar (supra) and
S. Raghbir Singh Gill (supra) to highlight that the primary
principle and test to be applied by the courts is purity of election,
that is, free and fair election. Secrecy of voting is an adjunct to
the principle of purity of election. Accordingly, in S. Raghbir Singh
Gill (supra) it was observed that secrecy is not an absolute
principle enshrined in law, but a requirement to subserve the
larger public interest of purity of election. Secrecy cannot stand
aloof, in isolation or in confrontation to the foundation of free and
fair elections. In Kuldip Nayar (supra), the Constitution Bench
observed that this Court in S. Raghbir Singh Gill (supra) had
rejected the apprehension that the principle of secrecy enshrined
in Section 94 of the RP Act cannot be waived being a prohibition
enacted in public interest and founded on public policy to hold that
where such a prohibition is in place, the courts should be slow to
apply the doctrine of waiver. Nevertheless, this privilege of
secrecy could be waived by the voter voluntarily because the very
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 7 of 11
concept of privilege inheres a right to waive it. Secrecy is for the
benefit of the voter and conferred to advance a principle enacted
in public interest.
12. The aforesaid position of law was referred to in Arikala Narasa
Reddy v. Venkata Ram Reddy Reddygari and Another5 to
reiterate that the principle of secrecy to vote is for the benefit of
the voters to enable them to cast their votes freely. Though this
principle is based on public policy, it is upon that person and no
one else to waive such benefit.
13. It is to be noted however, that all of the above cases cited by the
Petitioners pertain to the RP Act and the Rules made thereunder.
It is a trite position of law that when it comes to the interpretation
of statutory provisions relating to election law, jurisprudence on
the subject mandates strict construction of the provisions. In Shri
Banwari Dass v. Shri Sumer Chand and Others,6 referring to
the Delhi Municipal Corporation Act, 1957, it was observed that an
election contest is not an action at law or a suit in equity but purely
a statutory proceeding, provision for which have to be strictly
construed. Therefore, even in cases involving election provisions
to prevent corrupt practices, the court and the tribunal must act
judicially and not in an inquisitorial manner. The court cannot
5
(2014) 5 SCC 312
6
(1974) 4 SCC 817
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bridge the gap and supply an apparent omission by applying
principles of common law and equity. Therefore, it is necessary
for a proper determination of the issues at hand for an in-depth
analysis of the Uttar Pradesh Kshettra Panchayat and Zila
Panchayat Adhiniyam, 1961 and the 1966 Rules, specifically the
interplay between Rules 4, 7 and 12 of the 1966 Rules, and the
legal principles enunciated by this Court in the above
pronouncements.
14. It is to be observed that 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
the 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. Whether the same is illegal de jure, or is allowable,
or depends on the facts and circumstances of each case taking
into account the impact on the principle of free, fair and pure
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 9 of 11
elections is a question where we find the reasoning of the High
Court somewhat lacking.
15. That said, during the course of the hearing before us, learned
senior counsel appearing for the appellant had suggested on the
first day of hearing that the Motion against the first respondent
may be put to revote or fresh voting. Accordingly, we directed
learned senior counsel for the first respondent to obtain
instructions regarding the same, for which the case was
adjourned. It was stated on the next date of hearing, that the
suggestion was acceptable on a fresh motion of no confidence
being moved. The Petitioners objected to the necessity to file a
fresh motion, as this would imply that the Motion dated 1 st October
2018, which was put to vote on 25 th October 2018, would have to
be treated as rejected notwithstanding that forty-eight members
out of fifty-one members present, that is, almost 95% of the
members present had voted in support of the Motion. At the same
time, counsel for the first respondent had asserted that the first
respondent enjoys support of the Zila Panchayat and is, therefore,
confident that any motion of no confidence moved would be
defeated.
16. In the light of the above, we feel that ends of justice will be met if
the Motion dated 1st October 2018 is put to revote at a meeting of
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the Zila Panchayat by way of secret ballot with the District Judge,
Allahabad himself or his nominee Additional District Judge,
Allahabad, acting as the Presiding Officer on a date and time to be
fixed by the District Judge, which shall not be later than two
months from today. This would, in our opinion, be a just and fair
direction in the factual matrix of the present case given the
respective contentions and stand of the parties.
17. The appeals are accordingly disposed of in the above terms,
leaving the question of law open. No order as to costs.
………………………………..J.
(N.V. RAMANA)
………………………………..J.
(SANJIV KHANNA)
………………………………..J.
(KRISHNA MURARI)
NEW DELHI;
JUNE 19, 2020.
Civil Appeals arising out of SLP (C) Nos. 10733-734 of 2019 Page 11 of 11
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