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PETITIONER: RAGHBIR SINGH GILL

       Vs.

RESPONDENT: GURCHARAN SINGH TOHRA & ORS.

DATE OF JUDGMENT09/05/1980

BENCH: DESAI, D.A. BENCH: DESAI, D.A. GUPTA, A.C.

CITATION:  1980 AIR 1362            1980 SCR  (3)1302  CITATOR INFO :  R          1982 SC1569  (14)  R          1985 SC  89  (14)

ACT:      Representation of  the People  Act, 1951,  Section  94- Secrecy of voting -Scope of Section 94-Constitution of India Articles 326  & 327-Tampering  with records-Applicability of Section 64A of the Act to the present case-Rule 56(2) of the Election Rules,  scope of-Section 100(d)(1) (iii) of the Act and  void  elections-Petitioner  for  recount,  when  to  be ordered-Non-appearance of election Petitioner in the witness box, whether  vitiates the  petition-Interference by Supreme Court in an election petition.

HEADNOTE:      An  election  petition  was  filed  by  the  respondent against the  appellant, a  returned candidate to the council of the State from the constituency of the Punjab Legislative Assembly, on  the ground that the result of the election was materially  effected   (a)  by   non-compliance   with   the provisions of  the Representation  of the People Act and the rules made thereunder; (b) by improper reception of votes in his favour by tampering with the postal ballot papers and by commission of  corrupt  practice  in  the  interest  of  the appellant by  its agents  and  also  commission  of  corrupt practice by  obtaining assistance  of persons in the service of the  Punjab Government.  The  appellant  denied  all  the allegations and contested the petition. The High Court found that the  four ballot papers one each allotted to P.Ws. (the voters) Nos.  13, 14,  15 and  16 were tampered with in that each the  voter had cast his first preference vote in favour of unsuccessful Akali candidate Gurcharan Singh Tohra and no second preference  vote was  indicated and  each one  of the vote was  so altered  as to appear that each one of them has cast his  first preference  vote in  favour of the appellant and second preference vote in favour of Gurcharan Singh. The High Court  allowed the  election petition  and declared the unsuccessful  Akali   candidate  Gurcharan  Singh  Tohra  as elected and set aside the election of the appellant.      Dismissing the appeal, the Court ^      HELD: (1)  Section 94  of the  Representation of People Act, 1951  cannot be  interpreted or  examined in isolation.

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Its scope,  ambit and  underlying object must be ascertained in the  context in  which it finds its place in the Act, and further in  the context  of the fact that the Act itself was enacted in  exercise of  power conferred by Articles in Part XV titled  "Election" in  the Constitution  with a  view  to achieve  the   constitutional  goal,  viz.,  setting  up  of democratic sovereign  socialist secular republic. For this a free and  fair election,  a fountain spring and corner stone of democracy,  based on  universal  adult  suffrage  is  the basic. The  regulatory procedure for achieving free and fair election  for  setting  up  democratic  institution  in  the country is  provided in  the Act which includes the cross or performance indicated  by the  dumb-sealed lip  voter in the ballot paper. That is his right and the trust reposed by the Constitution in  him is  that he  will act  as a responsible citizen choosing  his masters  for governing the country for the period  prescribed by  it. Therefore, any interpretation of s.  94 must essentially subserve the purpose for which it is enacted.  The interpretative  process  must  advance  the basic postulate  of free  and fair  election for  setting up democratic institution and not retard it. [1312 G-H, 1313 A- C, E-F] 1303      H. H.  Kesavananda Bharati  Sripadagalavaru v. State of Kerala, [1973]   Suppl. S.C.R. 1; Mohinder Singh Gill v. The Chief Election  Commissioner, New  Delhi &  Ors.,  [1978]  2 S.C.R. 272, referred to.      (2).  It  is  legitimate  and  indeed  proper  to  have recourse to  heading and  sub-heading given  to a  group  of sections in  an Act  of Parliament  to find guidance for the construction of the words in a statute. One of the canons of construction is  that every  section of  a statute  is to be construed with  reference to  the context and other sections of the  Act, so as, as far as possible, to make a consistent enactment of the whole statute. [1316 F-G]      Rex v. Board of Trade, Ex-parte St. Martin’s Preserving Co. Ltd., [1965] 1 Q.B. 603 at 607 referred to.      (3). 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 one of intendment. Emphasis  is more  easily  demonstrated  when  a statute is  negative than  when it  is affirmative,  but the question is  one of  intendment. If  the 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. 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 fairplay. [1318 E-G]      Mayor of  London v.  Rex, [1848]  3 Q.B.  30;  Victoria Sporting Club  Ltd. v.  Hannam, (1969) 2 W.L.R. 454 referred to.      (4). The words "shall be required" in s. 94 of the Act, which is  cast in  negative  language  indicate  an  inbuilt element of compulsion. Section 94 carves out an exception to section 132  of the  Evidence Act and also section 95 of the Representation  of   People  Act,   1951.  In  view  of  the imperative language  of s.  132 of the Evidence Act and also from the constitutional guarantee against self-incrimination as enacted  in Article  20(3) of  the Constitution a witness when questioned in the witness box relevant to the matter in issue in a proceeding in which he is called as a witness has to answer  the question  put to  him and  cannot escape  the obligation to  answer the  question even  if the  answer was

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likely to incriminate him except to the extent the qualified privilege is  extended to  him under  the proviso to section 132 of Evidence Act. A conspectus of the relevant provisions of  the   Evidence  Act  and  ss.  93,  94  and  95  of  the Representation Act  makes it  clear that  they provide for a procedure,  including   the  procedure  for  examination  of witnesses, their  rights and  obligations in the trial of an election petition. The expression "other person" extends the protection to a forum outside courts. Section 94, therefore, cannot be  singled out  as a substantive provision and being unrelated to  the procedure prescribed for trial of election petition. [1314 A, B, E, F, 1315 A, F-G, 1316 C-F]      Dr. Chhotalal Jivabhai Patel v. Vadilal Lallubhai Mehta and Ors. (1971) 12 Guj. L.R. 850 @ 860 approved.      (5) Section 94 of the Representation of the People Act, 1951 can be construed in two possible ways 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 1304 but he  cannot be  compelled by court or any other authority to divulge  his vote. [1318 G-H, 1319 A]      If s.  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, s. 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 principles 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 as there  is no  provision in the Act which would expose him to any  penalty. If  a voter voluntarily chooses to disclose how  he   voted  or   for  whom  he  voted  s.  128  of  the Representation of  People Act  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. [1319 A-D]      If the  other  construction  is  adopted  the  mischief thereby perpetrated can be demonstrably established. One can then manipulate the vote cast by a voter and poor voter will be helpless  and unable to assist the court by his testimony which is  the best  direct evidence to establish for whom he voted and what mischief has been played with his vote. [1319 E-F]      (6) Free  and fair  election is not an a priori concept but of cherished constitutional goal oriented value. Secrecy of ballot  though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger  public interest,  namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot  cannot   stand  aloof   or  in   isolation  and   in confrontation to  the foundation of free and fair elections,

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namely, purity  of election. They can co-exist but where one is used  to destroy  the other,  the first one must yield to principle of  purity of  election in larger public interest. In fact  secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this  country to  ensure free  and fair  election and  to unravel foul play. [1320 F-H, 1321 A]      N.  P.   Ponnuswami  v.   Returning  Officer,  Namakkal Constituency &  Others, [1952]  S.C.R. 218  at 230, referred to.      (7). Ordinarily  secrecy of  ballot has  to be guarded, but where  secrecy of  the ballot  itself is  sought  to  be availed of  as a  protective sheath  against  disclosure  of fraud, forgery  or wrongful  conduct, it  must yield  in the larger public  interest to  ensure purity  of free  and fair election. [1322 D-E]      Queen v. Beardsall, LR [1875-76] 1 Q.B. 452 quoted with approval.      (8) Section  94 of the Act enacts a qualified privilege in favour  of the  voter in  that no  one can  compel him to disclose for whom he voted but the 1305 privilege  ends  there  for  if  he  desires  to  waive  the privilege and  volunteers to give information as to for whom he voted,  neither s.  94 nor  any provision  of the  Act is violated. No  one can  prevent  him  from  doing  so  nor  a complaint can  be entertained  from any  one  including  the person who  wants to  keep the voters mouth sealed as to why he disclosed  for whom  he voted.  Once the voter chooses to waive the  privilege and  volunteers to disclose for whom he voted there  is no  contravention of  s. 94  nor  any  other provision of  the Act and there is no illegality involved in it. [1324 B-E]      (9) Normally, where a prohibition enacted is founded on public policy Courts should be slow to apply the doctrine of waiver. But,  if a  privilege was granted for the benefit of an individual, in the instant case for the benefit of voter, even if  it was  conferred to advance a principle enacted in public interest nonetheless the person for whose benefit the privilege was  enacted has  a right  to waive it because the very concept  of privilege  inheres a right to waive it. And where a  voter waives  his privilege  not to be compelled to disclose for  whom he voted, if he wants to run the gamut of risk of  disclosure it  does not violate any other principle because it  was enacted  to help  him to  vote free from any inhibition or  fear or  apprehension of  being subjected  to some calamity. [1321 E-G]      Basheshar Nath v. The Commissioner of Income-tax, Delhi JUDGMENT: Behram Khurshed  Pesikaka v.  The State  of Bombay, [1955] 1 S.C.R. 613 at 654 applied.      (10) A  recount of votes cannot be ordered just for the asking. A  petition for  recount after  inspection  of  some ballot papers must contain an adequate statement of material facts on which the petitioner relies in support of his case. The Tribunal  must be prima facie satisfied that in order to decide the  dispute and  to do  complete justice between the parties an  inspection of  the ballot  papers is  necessary. Only on  the special facts of a given case sample inspection may be  ordered to lend further assurance to the prima facie satisfaction  of  the  Court  regarding  the  truth  of  the allegations made  for a  recount and  not for the purpose of fishing out  materials for declaring an election void. [1324 H, 1325 A-C]      Jitendra Bahadur Singh v. Krishna Behari & Ors., [1970]

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1 S.C.R. 852; Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors.  [1973] 2  S.C.R. 920;  Bhabhi v. Sheo Govind & Ors., [1975] Suppl.  S.C.R. 202;  Ram Autar Singh Bhadouria v. Ram Gopal Singh & Ors., [1976] 1 S.C.R. 191; and R. Narayanan v. S. Semmalai & Ors. [1980] 1 S.C.R. 571 followed.      (11) In an election appeal under s. 116A of the Act the Supreme Court does not ordinarily interfere with the finding of facts  recorded by  the High  Court particularly when the High Court  comes to  a conclusion  on appreciation  of  all material evidence  placed before  it. As  a  corollary  this Court would be slow to interfere with such findings of facts based on  appraisal of  evidence unless  there is  something radically wrong  with the  approach  of  the  learned  judge trying the election petition. [1330 C-E]      Ramji Lal  v. Ram  Babu Maheshwari  & Anr.  AIR 1970 SC 2075; D.  Gopala Reddy v. S. Bai Talpalikar & Ors. (1972) 39 Election Law  Reports 305 (SC) and Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors. [1973] 2. S.C.R. 920, applied. 1306      (12) A  petition for  a recount  on the  allegation  of miscount or  error in  counting is  based upon  not specific allegation of  miscounting but  errors which  may indicate a miscount and  recount becomes  necessary. When it is alleged that  postal   ballot  papers   were  tampered   with,   the implication in  law is  that those postal ballot papers have been wrongly  received in favour of a candidate not entitled to  the  same  and  improperly  refused  in  favour  of  the candidate entitled  to the  same and  therefore there  is  a miscount and  a recount  is necessary. In the very nature of things the  allegation can  be not on each specific instance of an  error of  counting or  miscount but broad allegations indicating error  in counting  or miscount  necessitating  a recount. In  the instant case, the discretion used regarding the necessity  of  inspection  of  ballot  papers  is  amply justified. Further  it is  established that  the four ballot papers have been tampered with. [1326 C-F, 1333 C]      (13) To  avail of the procedure prescribed in s. 64A of the Act  the conditions  prescribed in  that section must be satisfied.  Section   64A  envisages   a   situation   where tampering, damaging,  destruction or  loss of  ballot papers used at  a polling station is on such a large scale that the result  of  the  poll  at  the  polling  station  cannot  be ascertained. But  s.64A is  not attracted  in the  facts and circumstances of this case. The four ballot papers sent from different jails  and received  as postal  ballot papers  are shown to  have been  tampered with.  The votes  cast by  the ballot papers can be succinctly ascertained and have in fact been ascertained. [1333 G-H, 1334 A]      (14) The  decision in  Jagannath Rao  v. Raj  Kishore & Ors. AIR  [1972] SC 447 does not purport to lay down that as soon as  it is  shown that  some  ballot  papers  have  been tampered with,  the Court has merely to chart an easy course of rejecting  these ballot  papers. Such  an approach, apart from anything  else, would  be a  premium on unfair election practice. Where  voting is  by the  system  of  proportional representation by  means of the single transferable vote, if a tampering  as of  the nature indulged into in this case is brought to  light, the  necessity of  rejecting such  ballot papers as invalid would give an unfair advantage to the very person who  indulged into  such practice. When the Returning Officer did  not reject  the ballot  paper as being invalid, under Rule 56(2) of the Election Rules, 1961, once tampering is held  proved if  the circumstances permit and evidence of unquestionable character  is available it would be perfectly legitimate  for   the  Court  in  an  election  petition  to

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ascertain for  whom the vote was cast before it was tampered with and if it can be ascertained as a valid vote it must be accepted as such. Any other approach has an inbuilt tendency to give  an unfair  advantage either  to the  candidate  who himself might have indulged in tampering or someone who must have acted for his benefit. [1334 C-G]      (15) The  expression "improper reception" and "improper refusal" of  vote must  carry out the purpose underlying the provision contained  in s.100  of the  R.  P.  Act.  Section 100(1) (d) (iii) comprehends a situation where the result of an election  in so  far as  it concerns a returned candidate has been  materially  affected  by  improper  reception,  or improper refusal  of any  vote or  the reception of any vote which is  void. The  adjective ’improper’ qualifies not only the word  ’reception’ but  also the  word ’refusal’.  When a vote is received by the returning officer at 1307 the time  of counting  it implies two things, that it is not only received  as a  valid vote  but that  the valid vote is cast in  favour of  one of  the contesting candidates at the election. Similarly,  when it is said that there is improper refusal of  any vote  it implies again two things, namely, a vote which  ought to  have been  accepted as  valid vote has been improperly  refused as  an invalid vote, or there is an improper  refusal   to  accept  the  vote  in  favour  of  a particular candidate.  Therefore, an  improper reception  of any vote or an improper refusal of any vote implies not only reception or  refusal of  a vote  contended to be invalid or valid, as  the case  may be,  but  subsequent  reception  in favour of  any contesting  candidate at  the election  which would simultaneously show the vote being refused in counting to any  other candidate  at  the  election.  The  expression ’refusal’ implies  ’refuse to  accept’  and  the  expression ’reception’ implies ’refuse to reject’. [1335 D-H]      (16) The  wide comprehensive  panorama of s. 100 of the Representation of People Act, 1951 embraces within its fold, all conceivable  infirmities which  may be urged for voiding an election.  To construe  otherwise will  have the election petitioners without a remedy. It would mean that even though one can  indulge into  forgery what  is tampering  of ballot papers, if not forgery-and get away with it. [1337 D-H]      Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi & Ors., [1978] 2 S.C.R. 272 followed.

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1035 of 1978.      Appeal under  Section 116-A  of the  Representation  of People Act  1951 from  the Judgment  and Order dated the 5th June 1978  of the  Punjab and Haryana High Court in Election Petition No. 1 of 1976.      U.R. Lalit,  O.P. Sharma,  Vivek  Seth  and  Miss  Anil Katyar for the Appellant.      Hardev Singh,  R.S. Sodhi,  M.S. Gupta and Miss Manisha Gupta for Respondents.      The Judgment of the Court was delivered by      DESAI, J.-Purity of election and secrecy of ballot, two central pillars  supporting  the  edifice  of  Parliamentary democracy  envisioned   in   the   Constitution   stand   in confrontation with  each other  or are complimentary to each other, present the core problem in this appeal.      First  to   the  factual   matrix.  Punjab  Legislative Assembly formed  a constituency  for electing members to the

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Council of  States. On  March 3,  1976, a  notification  was issued  calling  upon  the  members  of  Punjab  Legislative Assembly to  elect three  members to  the Council of States. The election  programme was:  March 10, 1976, was prescribed as the last date for filing nominations; the scrutiny of the nominations was  to be  made on  March 11,  1976; March  13, 1976, was  the last  date by  which it  was  permissible  to withdraw from  the election;  in the  event of contest, poll was to take place on March 27, 1308 1976; counting  was to be done on the same day. Respondent 4 Smt. Amarjit  Kaur and  respondent 5  Sat  Pal  Mittal  were nominated as  candidates of the political party described as Indian National  Congress. Appellant  Sardar  Raghbir  Singh Gill claimed  to be  an independent  candidate. Respondent 1 Gurcharan Singh  Tohra was  a nominee of the Akali Party. As there  were  three  seats  and  four  candidates,  poll  was conducted on  March 27,  1976. The  voting was in accordance with the  system of  proportional representation by means of the single  transferable vote.  Counting took  place on  the same day  after the  poll closed at the prescribed hour. Two candidates of  the Indian  National Congress,  Smt.  Amarjit Kaur and  Sat Pal  Mittal secured 29 and 27 first preference votes respectively.  Appellant secured  23 first  preference votes. Respondent 1, the Akali nominee also secured 23 first preference votes.  The quota  was 25.51  votes. Accordingly, Smt. Amarjit  Kaur and  Sat Pal Mittal who had secured first preference votes  in excess  of the  ascertained quota  were declared  elected.   The  surplus   first  preference  votes according to the second preference votes to the tune of 4.81 votes were added to the first preference votes polled by the appellant and  he was  declared elected  to the  third seat. Respondents  2   and  3   two  sitting   members  of  Punjab Legislative  Assembly  and,  therefore,  eligible  electors, filed an  election petition on May 10, 1976, challenging the election of the present appellant, the independent candidate who was  declared elected  to the  third seat,  inter  alia, contending that  the result  of the  election of the present appellant has  been materially affected (i) by noncompliance with the provisions of the Representation of the People Act, 1951, and  the  Rules  made  thereunder;  (ii)  by  improper reception of  votes in  favour of respondent 1, and (iii) by commission of  corrupt practice in the interest of appellant by his  agent as  also commission  of  corrupt  practice  by obtaining assistance of persons in the service of the Punjab Government. The allegation was that Giani Zail Singh was the Chief Minister  of Punjab at the relevant time and it was he who had  put up the appellant as a candidate even though the members  of   the  Assembly  belonging  to  Indian  National Congress computing their voting strength in the Assembly had only fielded  two candidates  Smt. Amarjit  Kaur and Sat Pal Mittal. The  Chief Minister  Giani Zail  Singh in  order  to snatch the  third seat  not legitimately  available, fielded appellant as his candidate and to secure his election, power of office was abused. Seven members of Assembly belonging to Akali Party  and a lone Jan Sangh M.L.A. were detained under the  Maintenance  of  Internal  Security  Act,  the  detenus included P.W.  16 S.  Parkash Singh Badal, detained in Tihar Central Jail at Delhi, P.W. 15, S. Jaswinder Singh Brar, and P.W. 15  S. Jagdev  Singh Talwandi, detained in Central Jail at Patiala, S. Basant Singh Khalsa, detained in Jail at 1309 Nabha, P.W.  13 S. Surjit Singh Barnala, detained in Jail at Jullundur, S.  Gurbachan Singh  and S. Kundan Singh, Patang, detained in  Jail at  Sangrur, all  belonging to Akali Party

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and Dr. Baldev Prakash belonging to Jan Sangh. These detenus applied for  postal ballots  with a view to exercising their right of  franchise and  they did  in  fact  exercise  their franchise. In  course of  counting it  transpired that  four postal ballot  papers were  tampered with  and the tampering indicated that  the  first  preference  vote  in  favour  of respondent 1, Gurcharan Singh Tohra, the Akali candidate was altered to show second preference vote as also to indicate a first preference  vote in  favour of the appellant. This was noticed by  PW. 2 S. Manjit Singh Khera who was the counting agent of  respondent 1. It was alleged that Giani Zail Singh abused his power as Chief Minister by bringing pressure upon S. Partap  Singh, the  Returning Officer, Sardar Tirth Singh Sobti, a Sub-Post Master and the Superintendents of Jails at Sangrur, Patiala  and Nabha,  for facilitating the tampering and thereby  four additional  first  preference  votes  were wrongly received  in favour of the appellant to which he was not  entitled  and  the  valid  votes  in  favour  of  first respondent were  denied to  him by improper refusal and that it has  directly and  materially affected  the result of the election. It  was, however,  stated  in  the  petition  that though the tampering of four ballot papers was self-evident, they, the  petitioners were  not in  a position to state the exact method  adopted in  this  behalf.  The  allegation  of corrupt practice  was that  with  the  assistance  of  Chief Minister Giani Zail Singh official machinery was pressurised and utilised  to get  the appellant elected. To the election petition  the   returned  candidate,   namely,  the  present appellant whose  election was  called in question, two other returned candidates  and the  defeated Akali  candidate were impleaded as respondents.      The returned candidate, the present appellant contested the petition, inter alia, contending that the whole petition is based  on conjectures  and surmises.  The  allegation  of corrupt practice  was firmly  denied.  He  also  denied  his relationship with  Giani Zail  Singh and further denied that he  was  a  candidate  put  up  by  Giani  Zail  Singh.  Any allegation of tampering was denied and it was contended that Akali Party  presented a  picture of  a house  divided  and, therefore, the  surmise made  that members  belonging to the Akali Party  would en  block vote for the Akali candidate is not justified.  It was  contended that  the  petitioners  as admitted by  them in  the petition were not in a position to state the  exact method and process adopted by the Returning Officer and  his accomplices  in tampering  with the  postal ballots, and,  therefore, the case put forth in the petition is a  figment of  imagination, devoid of particulars and the petition is liable to be thrown out on this ground. 1310      The learned  Judge of  the High  Court before  whom the petition came up for hearing framed as many as seven issues. One issue was whether a case for inspection of ballot papers is made  out ?  The central  issue was  whether four  ballot papers were  unauthorisedly tampered  with after  the voters thereof had cast their first preference on them in favour of Akali  candidate,  and  if  so,  whether  they  were  hereby converted in  favour of  the returned  candidate by changing the figure  I placed against the name of the Akali candidate into figure II and further placing the figure I in favour of the returned  candidate ?  On the  finding of  this issue  a further issue had to be answered whether the four votes were improperly received  and counted  in favour  of the returned candidate and improperly refused to Akali candidate in whose favour they  were cast,  and  if  this  miscount  materially affected the  result of  the election  ? There  was an issue

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about alleged corrupt practice which was held not proved and was answered in favour of the returned candidate.      It may be noticed that neither the election petitioners (respondents 2  and 3 in this appeal) nor the appellant, the returned candidate,  nor respondent 1 the unsuccessful Akali candidate stepped into the witness box. Election petitioners examined P.W.  2 Sardar  M.  S.  Khera,  counting  agent  of respondent 1  four voters  whose votes  were alleged to have been tampered  with and  an expert P.W. 17 Dewan K. S. Puri. On behalf  of the  appellant R.W.  1 S.  Partap  Singh,  the Returning Officer,  R.W. 2  Karnail Singh  Marhari,  R.W.  3 Master Jagir  Singh to prove defection from Akali Party, and R.W. 4  the expert  Mr. R.  K. Vijh to prove that though the four ballot  papers appear  to be  tampered, it  must be  by voters themselves, were examined.      The learned Judge held that the four ballot papers, one each allotted to P.W. 13 S. Surjit Singh Barnala, P.W. 14 S. Jagdev Singh  Talwandi, P.W.  15 S. Jaswinder Singh Brar and P.W. 16  S. Parkash  Singh Badal, were tampered with in that each of  the voter  had cast  his first  preference vote  in favour of  the unsuccessful  Akali  candidate  S.  Gurcharan Singh Tohra  and no second preference vote was indicated and each one  of the  vote was altered so as to appear that each one of  them had cast his first preference vote in favour of the returned candidate, the appellant, and second preference vote in  favour of S. Gurcharan Singh Tohra. On this finding the learned  Judge concluded  that  these  four  votes  were improperly received  in favour  of  returned  candidate  and improperly refused  to the  unsuccessful Akali candidate and there has  thus been  a miscount and a recount was necessary and on  the recount the unsuccessful Akali candidate secured 27  first   preference  votes   by  the   addition  of   the aforementioned  four   tampered  votes   to  the   23  first preference votes already polled by him and that 1311 deducting four  first preference  votes from  the  23  first preference votes   already  counted in  favour  of  returned candidate he  polled 19  first  preference  votes.  On  this recount unsuccessful  Akali candidate respondent 1 was shown to have polled first preference votes in excess of the quota and, therefore,  there was no necessity to take into account the  second   preference  votes.  Accordingly  the  election petition was  allowed and  the unsuccessful  Akali candidate was declared  elected  and  the  election  of  the  returned candidate was  set aside.  Hence this appeal by the returned candidate.      When the  petition was  set down  for  recording  parol evidence  M.  S.  Khera,  polling  and  counting  agent  for respondent 1  was examined  on behalf of the petitioners. He was followed  by P.W.  13 S. S. Barnala. In his examination- in-chief the  following two  questions were  asked: "Q.  How many preferences did you cast on the ballot paper aforesaid" ? This  was objected  to on behalf of the returned candidate which objection  was overruled  and the following answer was recorded: "A.  I cast  only one  preference vote and did not cast  any   second  preference   in  favour   of  any  other candidate". "Q.  In whose  favour did  you cast  your  first preference vote"  ? An  objection was taken on behalf of the returned candidate that the question violates the secrecy of the ballot  as ensured by s. 94 of the Representation of the People Act,  1951 (’Act’  for short),  and,  therefore,  the question   was    impermissible.   At   that   stage   Civil Miscellaneous Application  No. 13-E of 1977 was presented on behalf of the election petitioners purporting to be under s. 115 of  the Code  of Civil  Procedure, requesting  the Court

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that the four tampered postal ballot papers be allowed to be inspected and  the concerned  witnesses be  permitted to  be questioned with  reference  to  them  when  they  enter  the witness box.  The application was contested. Ultimately, the learned Judge  by his reasoned order dated October 25, 1977, granted the application. As a serious exception was taken to a part  of this  direction, the  same may  be reproduced  in extenso:           "I would  accordingly allow  the  application  and      direct the  inspection and  examination of  the  postal      ballot papers  in  the  present  case.  Inevitably  the      witnesses relevant  to these  ballot  papers  are  also      allowed to  be examined  with  regard  thereto  in  the      interest of justice." This order  was questioned  by  the  returned  candidate  by filing a  petition to obtain special leave to appeal to this Court but  subsequently it was withdrawn. Thereafter all the four concerned witnesses were questioned in their respective examination-in-chief with regard to the 1312 first preference  vote cast  by each  of  them  and  also  a negative answer  was taken  that none  of them  had cast his second preference vote.      Mr. P.R.  Mridul, learned  counsel who appeared for the appellant directed  a frontal  attack  on  the  order  dated October 25,  1977, by  which  the  learned  Judge  not  only allowed the  inspection and examination of the postal ballot papers but  also permitted  the witnesses  to be  questioned relevant to the ballot papers.      The contention is that the impugned order dated October 25, 1977,  is bad  in law  and unsustainable on facts and if that order  is illegal,  the evidence  permitted pursuant to the order  would be  inadmissible and  if that  inadmissible evidence is  excluded even if the Court accepts the evidence of the expert examined on behalf of the election petitioners that the  four ballot  papers were  tampered with, yet there would not  be further  material to  show as  to what was the vote originally  recorded by  the voter  and the  nature and character  of   simultaneous   or   subsequent   alteration. Consequently, he  says that  these four postal ballot papers will have  to be  excluded from  counting and if they are so excluded the  appellant returned  candidate would  still  be having greater  number of  first preference  votes  and  his election could  not be  set aside.  This is  the fundamental issue in  this appeal and it is the appellant’s sheet anchor and as  it goes  to the  root of  the matter and the fate of appeal  substantially  hangs  on  it,  in  fairness  to  the appellant  the   contention  may  be  examined  in  all  its ramifications. There  were various  limbs of  the submission and for clarity each submission may be examined separately.      The first  limb of  the contention  is that  the  Order dated October 25, 1977, violates the mandate of s. 94 of the Act and  strikes at  the root  of  a  fundamental  principle governing  elections   in  a   democratic  polity   and  is, therefore, impermissible.  Section 94  of the  Act 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".      Section  94   cannot  be  interpreted  or  examined  in isolation. Its  scope, ambit  and underlying  object must be ascertained in  the context of the Act in which it finds its place, viz., the Representation of the People Act, 1951, and further in  the content of the fact that this Act itself was enacted in  exercise of  power conferred  by the articles in

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Part XV  titled ’Elections’  in the  Constitution. An Act to give  effect  to  the  basic  feature  of  the  Constitution adumberated and  boldly proclaimed  in the  preamble to  the Constitution, viz., the people of India 1313 constituting   into   a   sovereign,   socialist,   secular, democratic republic,  has to  be interpreted  in a  way that helps achieve the constitutional goal. Preamble sets out the political society  which we wanted to set up and, therefore, it must  be given  all importance.  The realisation of goals and vision  set out  in the  preamble forms  the fabric  and permeates the  whole scheme of constitution. The goal on the constitutional horizon  being a  democratic republic, a free and fair  election, a  fountain spring  and  cornerstone  of democracy, based  on universal  adult suffrage is the basic. The  regulatory   procedure  for  achieving  free  and  fair election  for  setting  up  democratic  institution  in  the country is  provided  in  the  Act.  Further,  Sikri,  C.J., Shelat,  Grover,  Hegde,  Mukherjea  &  Reddy,  JJ.  in  His Holiness Kesavananda  Bharati Sripadagalavaru  v.  State  of Kerala(1), have  in clear  and unambiguous  terms laid  down that republic  democratic form  of Government  is one of the basic  and   essential  features  of  our  Constitution.  In Mohinder Singh  Gill v. The Chief Election Commissioner, New Delhi & Ors.(2), Krishna Iyer, J. has quoted with approval a statement of Sir Winston Churchill which reads as under :           "At the  bottom of  all tributes paid to democracy      is the  little man, walking into a little booth, with a      little pencil, making a little cross on a little bit of      paper-no amount  of rhetoric  or voluminous discussions      can possibly  diminish the  overwhelming importance  of      the point." To adopt  it with  a slight  variation, nothing can diminish the overwhelming  importance of  that  cross  or  preference indicated by  the dumb  sealed lip  voter. That is his right and the  trust reposed by the Constitution in him is that he will act  as a  responsible citizen choosing his masters for governing the  country for  the period prescribed by it. Any interpretation  of  s.  94  must  essentially  subserve  the purpose for  which it is enacted. The interpretative process must advance  the basic  postulate of free and fair election for setting  up democratic  institution and  not retard  it. Section  94   cannot  be   interpreted  divorced   from  the constitutional values enshrined in the Constitution.      To start with it is necessary to examine the format and setting of  section 94. It finds place in Chapter III headed "Trial of  Election Petitions".  A cursory glance at various provisions included  in Chapter  III from  s. 86  to s.  107 would leave  no room  for doubt  that the Chapter prescribes procedure for  trial of  election petitions.  Section  87(2) provides for  application of  the provisions  of the  Indian Evidence Act  (‘Evidence Act’  for short)  to the  trial  of election petitions subject 1314 to the  provisions of the Act. In order to unfetter election petitions from  the fetter  of property  laws a far reaching exception had  to be enacted in s. 93 lifting the embargo on the admissibility  of documents  for want of registration or inadequacy of  stamp. Section  95 is  to some extent in pari materia with  s. 132 of the Evidence Act inasmuch as it does not excuse  a witness  from answering questions in the trial of an  election petition upon the ground that the answer may incriminate  him  or  may  expose  him  to  any  penalty  or forfeiture but  extends protection in respect of such answer by giving  him a  certificate of  indemnity  in  respect  of

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specified offences.  Looking to  the format and setting, the question  is  :  does  s.  94  create  merely  a  processual inhibition against compelling a witness to answer a question disclosing for  whom he  had voted  or does  the substantive provision, as  was contended  on behalf  of  the  appellant, enacted with  a view  to ensuring total secrecy of ballot as an integral part of free and fair election vouchsafed by the Constitution, put  a complete  embargo on the disclosure for whom the  witness voted  ? The  larger question whether free and fair elections necessarily imply secrecy of voting or to ensure free  and fair elections in a given situation secrecy or voting  has to yield to the fundamental principle of free and fair election, will be presently examined. At this stage it is  necessary to  confine to  the language  in which  the provision is couched.      Does s.  94 prevent  any one  from seeking  information about how  a person  has cast his vote from the mouth of the person or  is it  the privilege  of  the  voter  not  to  be compelled to  disclose for whom he has voted ? The provision is cast in negative language. The important words are "shall be required".  The word ‘required’ has an inbuilt element of compulsion. When  it  is  said  that  no  witness  shall  be required to state for whom he has voted at an election, on a pure  grammatical  construction  uninhibited  by  any  other consideration it  would mean  that  the  witness  cannot  be compelled against  his will  to disclose how he has voted or for whom  he has voted. When a witness is put in the witness box and  he is  questioned  under  oath  as  to  any  matter relevant to  the issue  in any  suit  or  in  any  civil  or criminal proceeding, in which he is called to give evidence, the witness  is not  excused  from  answering  any  question relevant  to  the  matter  under  enquiry  upon  any  ground including the  ground that  the answer to such question will criminate or  may tend  directly or  indirectly to criminate such witness  or that  it will  expose or  tend directly  or indirectly to expose such witness to a penalty or forfeiture of any kind as provided in s. 132 of the Evidence Act. There is a  proviso to  the section  which extends  protection  in respect of  such compelled testimony to the extent indicated in the  proviso. Section  87(2) of  the Act  was enacted  to avoid any  contention that an election petition is neither a civil nor a criminal 1315 proceeding and  hence s.  132 of  the Evidence  Act  is  not attracted. But  as the proviso to s. 132 of the Evidence Act extends only  a qualified  privilege, s. 95 of the Act which is in pari materia with s. 132 of the Evidence Act had to be incorporated in  the chapter  with its  own proviso’  for  a slightly  larger  protection.  In  view  of  the  imperative language of  s. 132  of the  Evidence Act  a witness  cannot refuse to  answer a question which is relevant to the matter under enquiry in which he is called as a witness even on the pain of  self-incrimination. In  the past  in the  countries governed  by   Anglo-Saxon  jurisprudence  the  witness  was privileged  both  from  answering  questions  and  producing documents the tendency of which was to expose the witness to any criminal  charge, penalty  or forfeiture  (see Spokes v. Grosvenor Hotel  (1). This  privilege was  founded upon  the maxim nemo tenetur seipsum prodere, meaning, no one is bound to criminate  himself and  to place himself in peril. Over a period, as  Wigmore puts  it, the  privilege indirectly  and ultimately works  for good-for  the  good  of  the  innocent accused and  of the  community at  large, but  directly  and concretely it works for ill-for the protection of the guilty and  the   consequent  derangement   of  civic   order  and,

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therefore, there ought to be an end of judicial cant towards crime. The  result is  that the  privilege is  withdrawn  as clearly transpires  from the  language  of  s.  132  of  the Evidence Act  and  the  proviso  only  affords  a  qualified privilege inasmuch  as any such answer which a witness shall be compelled to give under the main part of s. 132 shall not subject him  to any  arrest or  prosecution,  or  be  proved against him  in any criminal proceeding except a prosecution for giving  false evidence  by such  answer. One  may recall here the constitutional guarantee against self-incrimination as enacted  in Article  20(3) which  provides that no person accused of  any offence  shall be  compelled to be a witness against himself.  It would, therefore, appear that a witness when questioned in the witness box relevant to the matter in issue in a proceeding in which he is called as a witness has to answer  the question  put to  him and  cannot escape  the obligation to  answer the  question even  if the  answer was likely to incriminate him except to the extent the qualified privilege is  extended to  him under  the  proviso.  Section 87(2) of  the Act provides that the provisions of the Indian Evidence Act,  1872, shall, subject to the provisions of the Act, be  deemed to  apply in all respects to the trial of an election petition.  Section 95(1)  of the  Act re-enacts the main part of s. 132 of the Evidence Act. The combined effect of s.  87(2) read  with s. 95 of the Act, and omitting s. 94 for the  time being,  would be  that  if  a  witness  in  an election petition  is questioned  as to for whom he voted he would be  under an  obligation to  answer that question. The principle of 1316 secrecy of ballot necessitated a specific provision excusing the witness from answering such a question which he would be under an  obligation to  answer under s. 132 of the Evidence Act or  s. 95(1) of the Act. Section 94 precedes s. 95 which obliges a  witness to  answer all  questions relevant to the enquiry in  an election  petition even  on the pain of self- incrimination. But  for s.  94, the  witness could  not have avoided answering  the question put to him as to for whom he voted.      Secrecy  of  ballot  undoubtedly  is  an  indispensable adjunct of  free and  fair elections.  A  voter  had  to  be statutorily assured  that  he  would  not  be  compelled  to disclose by  any authority as to for whom he voted so that a voter may  vote without  fear or favour and is free from any apprehension of its disclosure against his will from his own lips. To  that extent  s.  94  of  the  Act  carves  out  an exception to s. 132 of the Evidence Act and s. 95 of the Act (see Dr. Chhotalal Jivabhai Patel v. Vadilal Lallubhai Mehta & Ors.) (1). As section 94 carves out an exception to s. 132 of the  Evidence Act  as also  to s.  95 of  the Act  it was necessary to  provide for protection of the witness if he is compelled to answer a question which may tend to incriminate him. Section  95 provides  for grant  of  a  certificate  of indemnity in the circumstances therein set out. A conspectus of the  relevant provisions  of the Evidence Act and ss. 93, 94 and  95 of  the Act  would affirmatively  show that  they provide  for   a  procedure,  including  the  procedure  for examination of  witnesses, their  rights and  obligations in the trial  of an election petition. The expression ‘witness’ used in  the section is a pointer and the further expression ‘other person’  extends the  protection to  a forum  outside courts. Section  94, therefore, cannot be singled out as was contended on  behalf  of  the  appellant  as  a  substantive provision and  being unrelated  to the  procedure prescribed for  trial   of  election   petition.  This   conclusion  is

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reinforced by  the title  of Chapter  III "Trial of Election Petitions" because  it is  legitimate and  indeed proper  to have recourse to heading and sub-heading given to a group of sections in  an Act  of Parliament  to find guidance for the construction of  the words  in a statute (see R. v. Board of Trade; Ex-parte  St.  Martin’s  Preserving  Co.  Ltd.)  (2). Coupled with  this one  can advantageously  refer to a known canon of  construction that every section of a statute is to be  construed  with  reference  to  the  context  and  other sections of  the Act,  So as,  as far as possible, to make a consistent enactment of the whole statute.      The marginal  note of s. 94 says ‘secrecy of voting not to be infringed’. Section 128 of the Act casts an obligation on every officer, 1317 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) communicate 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) and (8), 40(1) second proviso, 38A(4), 39A(1)  & (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 s.  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 principle 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 untrammeled 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.      Having said  this, the  substantial question is whether s. 94 enacts an absolute prohibition or a total embargo on a voter  being  questioned  about  how  he  voted  which  will infringe the secrecy of a ballot? The question is whether it is the privilege of the voter to refuse to answer a question as to for whom he voted or in order to ensure the secrecy of ballot there  is a total embargo and absolute prohibition on finding out  through the mouth of a voter for whom he voted? Is  it   inviolable  in   any  situation,   or  contingency? Undoubtedly, secrecy of ballot is a key stone in the arch of constitutional democracy and that it rests on public policy, namely, that  a  voter  shall  be  free  from  any  kind  of constraint or  fear or untrammeled by any apprehension while voting.  But   this  basic   postulate   of   constitutional democracy, namely,  secrecy of  ballot was formulated not in any abstract  situation or  to be  put  on  a  pedestal  and worshipped  but   for  achieving   another  vital  principle sustaining constitutional  democracy, viz.,  free  and  fair

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election.      Free and fair elections are the mainspring of a healthy democratic  life   and  a  barometer  of  its  strength  and vitality. Electoral administra- 1318 tion must, therefore, be free from pressure and interference of the  executive and  legislature. It  should  be  able  to secure fairness  to all parties and candidates. An awareness by the people of the significance of their vote and the need for them  to exercise  it responsibly  and an assurance that the  voter   would  be   able  to   exercise  the  franchise untrammeled by  any fear  and apprehension  of  any  adverse consequence flowing  therefrom are the main ingredients of a truly  democratic   and  successful  electoral  system  (see Elections in  India by  R. P.  Bhalla).  If  free  and  fair election is  the life-blood  of constitutional democracy and if secrecy  of ballot  was ensured  to  achieve  the  larger public purpose  of free  and fair elections either both must be complimentary  to each  other and  co-exist or  one  must yield to the other to serve the larger public interest.      This  situation  immediately  raises  the  question  of construction of  s. 94.  Does it  lend itself  open  to  two constructions? If  so, are there inner indicia to prefer one to the  other?  Can  external  aid  be  sought  for  correct construction to  unravel the  intention of the Parliament in enacting s. 94?      It was  said that  s.  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 an  absolute prohibition.  Provision 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  statute  is negative than when it is affirmative but the question is one of intendment  (see Mayor  of London v. R.) (1). 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. Hannam) (2). 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 fairplay.      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  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 1319 divulge his  vote. Which  of the  two constructions advances the object of enactment?      If s.  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, s. 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

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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.      If the  other construction  is  adopted,  the  mischief thereby perpetrated can be demonstrably established. One can then manipulate the vote cast by a voter and poor voter will be helpless  and unable to assist the Court by his testimony which is  the best  direct evidence to establish for whom he voted and what mischief has been played with his vote.      The interpretation of s. 94 which appeals to us ensures free and  fair elections.  Secrecy of  ballot was  mooted to ensure free  and fair  elections. If  the  very  secrecy  of ballot instead  of ensuring  free and fair elections strikes at the root of the principle of free and fair elections this basic postulate  of democracy  would be utilised for undoing free  and   fair  elections   which  provide  life-blood  to parliamentary democracy.  If secrecy  of ballot  instead  of ensuring free and fair elections is used, as is done in this case, to  defeat the  very public  purpose for  which it  is enacted, to  suppress a wrong coming to light and to protect a fraud  on the  election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will  have to  yield to  the larger principle of free and fair elections.      It was,  however, contended that like secrecy of ballot the concept  of purity  of election  is one of the essential postulates of a democratic 1320 process but  the concept  of purity  of elections  is not an esoteric principle but a principle enshrined in and codified by the  provisions of  the Act.  Says, Mr. Mridul, that this principle is  operative only  to the extent it is enacted in the various  provisions of  the Act  and vague,  theoretical concept of  purity not  articulated in the provisions of law cannot be  the basis  for overriding  the concept of secrecy which is  expressly provided  for  in  s.  94  of  the  Act. Reference was  made to  the Statement of Objects and Reasons of the  Act and  to N.P.  Ponnuswami v.  Returning  Officer, Namakkal Constituency  & Others,(1)  where it  was  observed that the  Act  is  a  self-contained  enactment  so  far  as elections are concerned which means that whenever one has to ascertain  the   true  position  in  regard  to  any  matter connected with  the elections,  one has  only to look at the Act and the Rules made thereunder. Undoubtedly, the Act is a self-contained Code  but the  Act was enacted in exercise of the power  conferred by  Part XV  of the  Constitution which envisages setting  up of an independent Election Commission. Article 326  ensures that  elections to  the  House  of  the People and  to the Legislative Assembly of every State shall be on the basis of adult suffrage. Article 327 confers power on Parliament  to make provision with respect to all matters relating to  or in connection with elections to either House of Parliament  or to  the  House  or  either  House  of  the

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Legislature  of   a  State   including  the  preparation  of electoral rolls,  the delimitation of constituencies and all other matters necessary for securing the due constitution of such House  or Houses.  The  preamble  to  the  Constitution enshrines a  solemn declaration  to constitute  India into a sovereign,   socialist,    secular,   democratic   Republic. Therefore, the  Act enacted pursuant to a power conferred by the Constitution  for setting  up Parliamentary institutions in this  country  envisaged  by  the  Constitution  for  the governance of  this country  cannot be  interpreted divorced from   the    constitutional   values   enshrined   in   the Constitution. And  there is  one fundamental principle which permeates through  all democratically  elected parliamentary institutions,  viz.,  to  set  them  up  by  free  and  fair election. It  is not  an a  priori concept  but of cherished constitutional goal oriented value. Secrecy of ballot though undoubtedly a  vital principle  for ensuring  free and  fair elections, it  was enshrined  in law  to subserve the larger public interest,  namely, purity  of election  for  ensuring free and  fair election.  The principle of secrecy of ballot cannot stand  aloof or  in isolation and in confrontation to the foundation  of free  and fair elections, viz., purity of election. They can co-exist but as stated earlier, where one is used  to destroy  the other,  the first one must yield to principle of  purity of  election in larger public interest. In fact  secrecy of ballot, a privilege of the voter, is not inviolable and 1321 may be  waived by  him as  a  responsible  citizen  of  this country to ensure free and fair election and to unravel foul play.      An apprehension was, however, voiced that the principle of secrecy enshrined in s. 94 of the Act having been enacted in public  interest and  it being  a  prohibition  based  on public policy,  it cannot  be waived. Reliance was placed on Basheshar Nath  v. The  Commissioner of  Income-tax, Delhi & Rajasthan and  Another,(1) where  the question  whether  the doctrine of waiver can be invoked when the constitutional or statutory guarantee  of a  right is  not conceived in public interest or  when it does not affect the jurisdiction of the authority infringing  the said  right, was  examined. It was held that if the privilege conferred or the right created by the statute  is solely for the benefit of the individual, he can waive it. It was, however, said that even in those cases the Courts  invariably administered  a caution  that  having regard to  the nature  of the  right some  precautionary and stringent conditions  should be  applied before the doctrine is invoked  or applied.  In Behram  Khurshed Pesikaka v. The State of  Bombay,(2) it was observed that fundamental rights have not  been put in the Constitution merely for individual benefit, though  ultimately  they  come  into  operation  in considering individual rights. They have been put there as a matter of  public policy and the doctrine of waiver can have no application  to provisions of law which have been enacted as a  matter of  constitutional policy. Undoubtedly, where a prohibition enacted  is  founded  on  public  policy  Courts should be  slow to  apply the  doctrine of  waiver but  this approach overlooks  the fact that if a privilege was granted for the  benefit of  an individual,  in the instant case for the benefit  of voter, even if it was conferred to advance a principle enacted  in public interest nonetheless the person for whose  benefit the  privilege was enacted has a right to waive it  because the  very concept  of privilege  inheres a right to  waive it.  And where  a voter waives his privilege not to  be compelled  to disclose  for whom  he voted, if he

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wants to  run the  gamut of  risk  disclosure  it  does  not violate any  other principle  because it was enacted to help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. To hold otherwise is to perpetuate  the   very  mischief   which  is  sought  to  be suppressed. The  inescapable conclusion is that s. 94 enacts a qualified  privilege in  favour  of  a  voter  not  to  be compelled to disclose for whom he voted but if he chooses to volunteer the information s. 94 is not violated.      Having dealt with the question of construction of s. 94 of the Act on first principle, a reference to the precedents to which our attention 1322 was drawn  would buttrss  our conclusion.  In the  Queen  v. Beardsall,(1) at  a trial  of indictment  against  a  Deputy Returning Officer,  for offence  under the Ballot Act, 1872, charging  him   with  having   fraudulently  placed   papers purporting to  be, but  to his  knowledge not  being, ballot papers  in   the  ballot  box,  Blackburn,  J.  allowed  the counterfoils  and   marked  register   produced  under   the aforesaid order to be given in evidence, and the face of the voting papers  to be  inspected so  as to show how the votes appeared to  have been  given. Upholding  this order, Kelly, C.B., observed  that, "the legislature has no doubt provided that secrecy  shall be  preserved  with  respect  to  ballot papers and  all documents  connected with  respect to ballot papers and  all documents  connected with what is now made a secret mode  of election.  But this  secrecy is subject to a condition essential to the due administration of justice and the prevention  of fraud,  forgery, and  other illegal  acts affecting the purity and legality of elections."      Lush, J., observed as under :           "It was argued that secrecy was the only object of      the Ballot  Act, but I do not agree to the proposition.      Secrecy was  one object, the other was to secure purity      of election;  and it  is difficult to say which is most      important". It thus clearly transpires that ordinarily secrecy of ballot has to  be guarded but where secrecy of the ballot itself is sought to  be availed  of as  a  protective  sheath  against disclosure of  fraud, forgery  or wrongful  conduct, it must yield in the larger public interest to ensure purity of free and fair election.      Schofield in  "Parliamentary Elections",  3rd Edn.,  p. 453, states the law as under :           "Evidence may  be called but witnesses must not be      asked for  whom they  voted for no person who has voted      at the  election  shall  in  any  legal  proceeding  to      question the  election or  return be  required to state      for  whom  he  voted.  There  would  appear  to  be  no      objection to  the witness volunteering this information      particularly in a case of personation".      It was  however, said that Schofield’s statement of law should not be accepted because this proposition is not noted in Halsbury’s  Laws of  England, 4th  Edn., Vol. 15, p. 494, para 909,  wherein on  the question  of secrecy  of vote the following statement of law is to be found:           "A witness  may not  be required  to disclose  for      whom he  has voted  and it is only in those cases where      he has 1323      publicly  held   himself  out   as  belonging  to  some      political party  that he may be asked to which party he      belongs.           The Court  may not discover how a person has voted

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    untill it  has been  proved that  he voted and his vote      has been declared to be void".      A  passage   at  page   210  in   Parker’s  Conduct  of Parliamentary Elections,  1970 Edn.,  was read  out to us in support of  the contention that there are certain provisions in an  election law  containing an  absolute enactment which must be  obeyed strictly  and a  breach of which will render the vote  void. There is no reference to a provision similar to one  found in s. 94 of the Act nor any decision quoted to show its scope and ambit.      In American  Jurisprudence, 2d Vol. 26, page 166, paras 347 and 348 it is stated as under :           "As an incident of the secret ballot system and in      order to  preserve the  purity and  independence of the      exercise of  the elective  franchise, the  rule is well      established that a legal and honest voter is privileged      from testifying  as to  the candidate  for whom he cast      his vote  .. ..  .. the  privilege of  a legal voter to      refuse to  testify for  whom he  cast his ballot may be      waived by the voter but since the privilege is personal      to the voter, it may be waived only by him".      In Corpus  Juris Secundum,  Vol. 29,  para 278,  it  is stated as under :           In  the  absence  of  proof  or  claim  of  fraud,      illegality, or  irregularity,  parol  evidence  is  not      admissible to contradict a ballot, and a voter will not      be permitted  to testify  that he  voted  in  a  manner      different from that shown by his ballot.           However, a  voter may  testify that another ballot      has been  substituted for  the one he cast, or that his      ballot has been changed since it was cast".      In para 281 in the same volume it is stated as under :           "The policy  of the law is to protect legal voters      in the secrecy of the ballot. Accordingly a legal voter      cannot be  compelled to  disclose for whom he voted, in      the absence  of a  showing of  fraud on the part of the      election officers sufficient to invalidate the returns;      and it  has been  held that  the same considerations of      public policy  which relieve  the  voter  himself  from      being compelled  to testify  for whom  he voted  should      prevent other proof of the fact". 1324           "Exemption a  personal privilege.-By the weight of      authority the exemption from obligation to disclose the      character of  his vote can be claimed only by the voter      himself, and,  if he  sees fit  to answer the question,      there can  be  no  objection  to  the  testimony,  but,      according to  some authorities,  in an election contest      voters cannot  be permitted to testify at all as to how      they voted".      Having anxiously  examined the matter both on principle and precedent, there is no gainsaying the fact that s. 94 of the Act enacts a privilege in favour of the voter in that no one can  compel him  to disclose  for whom  he voted but the privilege  ends  there  for  if  he  desires  to  waive  the privilege and  volunteers to give information as to for whom he voted,  neither s.  94 nor  any provision  of the  Act is violated. No  one can  prevent  him  from  doing  so  nor  a complaint can  be entertained  from any  one  including  the person who  wants to keep the voter’s mouth sealed as to why he disclosed  for whom  he voted.  The  learned  Judge  was, therefore, justified  in permitting the four voters who were examined as  witnesses  to  waive  the  privilege  and  then disclose for whom each one of them voted. If any one of them wanted to  claim the  privilege, neither  the Court  nor any

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other authority  could have  compelled him to open his mouth and he could have kept his lips sealed but there the embargo placed by  s. 94  ends. Once  the voter chooses to waive the privilege and volunteers to disclose for whom he voted there is no  contravention of s. 94 nor any other provision of the Act and there is no illegality involved in it.      It  was,   however,  contended   that  apart  from  the prohibition enacted in s. 94 ensuring secrecy of ballot, the order dated October 25, 1977, is erroneous and unsustainable on facts disclosed in the petition and the evidence recorded till the  date of  the order.  It  was  contended  that  the allegations in  this behalf  in the  election  petition  are vague and  wholly devoid  of particulars.  Says, Mr. Mridul, that  virtually  the  petitioners  themselves  confess  this position when  they say  that they were hardly in a position to  make   any  specific   assertion,  a  fact  demonstrably established, that  the election  petitioners were  not in  a position to  state the  exact method  and process adopted by the returning  officer and  his associates in tampering with the postal  ballot. Undoubtedly,  in para 18 of the petition the election  petitioners have  said that  they are not in a position to  state the  exact method  and process adopted by the returning  officers and  his accomplices  to tamper with the postal  ballots. This  is in  substance a  petition  for recount. True,  recount  cannot  be  ordered  just  for  the asking. A petition for recount after 1325 inspection  of   the  ballot   papers  contain  an  adequate statement on  material facts  on which the petitioner relies in support  of his  case and  secondly the  Tribunal must be prima facie  satisfied that  in order  to decide the dispute and to do complete justice between the parties an inspection of the  ballot papers is necessary. The discretion conferred in this  behalf should  not be exercised in such a way so as to enable  the applicant to indulge in a roving inquiry with a view  to fishing  out materials for declaring the election void. Only  on the  special facts  of a  given  case  sample inspecting may  be ordered  to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations  made for  a recount and not for the purpose of fishing  out materials.  This is well settled by a catena of decisions.  (see Jitendra Bahadur Singh v. Krishna Behari & Ors.,(1)  Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors.,(2) Bhabhi  v. Sheo  Govind &  Ors.,(3) Ram Autar Singh Bhadauria v.  Ram Gopal Singh & Ors.,(4) and R. Narayanan v. S. Semmalai & Ors(5).      The petitioners aver in the petition that the returning officer   in   collaboration   and   conspiracy   with   the Superintendents of  Jails and  under the directions of Giani Zail Singh  the then  Chief Minister,  to help  the  present appellant, tampered with the postal ballots and changed four of them  to this  extent that  they should be considered and counted as  first preference votes for the appellant instead of respondent  1, the  unsuccessful candidate. There is also an assertion  that when the postal ballot papers were sorted out for  the purpose  of counting,  M. S. Khera. P.W. 2, the counting agent  of respondent 1 found to his dismay that the four postal  ballot papers were tampered with and the manner in which  the tampering  appeared to have been done has also been set  out in the petition. It was also stated that there was overwriting  and there were interpolations in the ballot papers inasmuch as what was originally first preference vote was  made   to  appear   second  preference  and  the  first preference vote was indicated in favour of the appellant. It was alleged  that the  counting agent  M. S.  Khera and  his

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companions objected  to receiving  the four  tampered postal ballot papers  in favour  of the  appellant. This shows that there were  sufficient allegations  in the election petition about  the   tampering  of   four  postal   ballot   papers. Undoubtedly, the  method employed in tampering being hatched in and  carried out  in secrecy  may not be known or may not come to light but the result of tam- 1326 pering became  manifest as  soon as the postal ballot papers were taken out of the envelopes and sorted out for counting. Coupled with  this one  must remember  that  eight  electors being members  of the  Legislative  Assembly  had  voted  by postal ballot. Those who opted for postal ballot papers were detenus detained  under the Maintenance of Internal Security Act. Who  they were was known to every one inasmuch as seven of them  belonged to Akali Party and one was a member of Jan Sangh. Their  political alignments  were  known.  Therefore, when the  postal ballot  papers were opened and the counting agent of Akali candidate respondent 1 found that four out of eight postal  ballot papers  appeared to  have been tampered with it  was easy  for him  to deduce  that the  four voters belonging to  Akali Party,  if the  ballot disclosed  a true state of  affairs, had  cast their  votes in  favour of  the appellant,  a   candidate  opposed  to  the  official  Akali candidate. Simultaneously  a mere  glance at  those tampered postal ballot  papers would  show  that  the  tampering  was rather crude  and no  expertise was  necessary  to  form  an opinion that  these four postal ballot papers were tampered. And these  allegations have  been made  in the  petition.  A petition for  a recount  on the  allegation of  miscount  or error in  counting is  based upon not specific allegation of miscounting but  errors which  may indicate a misconduct and recount becomes  necessary. When  it is  alleged that postal ballot papers  were tampered with, the implication in law is that those  postal ballot  papers have been wrongly received in favour  of a  candidate not  entitled  to  the  same  and improperly refused  in favour  of the  candidate entitled to the same,  and this  is a miscount and recount is necessary. In the  very nature  of things  the allegation can be not on each specific  instance of  an error of counting or miscount but  broad  allegations  indicating  error  in  counting  or miscount necessitating a recount.      Coupled with  the allegation  in the petition, when the election petitioners  started  examining  the  witnesses  on their behalf, Shri M. S. Khera, P.W. 2 a practising Advocate and counting agent for the unsuccessful Akali candidate gave evidence to  the effect that when eight envelopes containing postal ballot  papers were taken up for counting two of them were found properly sealed and seal of the Superintendent of the Jail  was decipherable.  However, the  wax seal  on  the other  six   envelopes  containing  ballot  papers  was  not decipherable at  all.  He  said  that  these  six  envelopes containing ballot  papers did  not  have  the  seal  of  the Superintendent of  Jail from where they were despatched. His evidence was  further to  the effect  that after  the  small inner envelopes containing the ballot papers were opened and the ballot  papers were  put down  on the  table with  their faces in reverse 1327 so that  the agents  and candidates  could not see as to for whom the  vote  had  been  cast,  he  kept  a  close  watch. Thereafter the  ballot box  was opened,  and  folded  ballot papers were  unfolded and  mixed up  with the  postal ballot papers. Thereafter, according to him all these ballot papers were placed  in different trays earmarked for the candidates

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and counted with regard to their preferences. Then comes the very important statement which may be extracted :           "When this  was done, I noticed that the bundle of      the returned  candidate S. Raghbir Singh contained four      postal ballot  papers and these had first preference in      favour of  the returned  candidate S. Raghbir Singh and      second preference  in  favour  of  S.  Gurcharan  Singh      Tohra. The  reason only  which I  could detect this was      that the  pencil used  for marking  first preference in      the booth  was a  red one  whilst the postal ballots on      the other hand had been marked with blue ink and one of      them had  been  marked  with  red-ball-point.  It  was,      therefore, that  I could  detect that these were postal      ballots. My  suspicions were  at once aroused because I      could not  conceive that  the postal ballots which were      from the  leaders of the Akali Party could be of second      preference for Mr. G. S. Tohra.           I then  asked the Returning Officer to recount the      ballot papers  of the returned candidate as I seriously      doubted the  counting thereof.  He did  so and  in  the      process of this recount I particularly kept a sharp eye      on these  four ballot  papers. Indeed  I asked  him  to      count the  ballot papers  for the  third  time  and  he      complied with  my request  as my  object was  to see as      minutely and as surely as possible these ballot papers.      In the  process aforesaid  I found  that two out of the      four postal ballot papers which were marked with a blue      ink were  heavily  overwritten  and  especially  so  as      regards the  marking for  the  second  preference.  The      third ballot  paper was  not as heavily overwritten but      it was  clear that  this also had been so done twice or      thrice. As  regards the fourth ballot paper marked with      a red  ballpoint the second preference marking showed a      difference  in   colour  of   the  two   lines  and  as      distinguished from the other three which were marked in      the Roman  whilst this contained two parallel lines for      two. From  these observations  at least I was convinced      that the  postal ballot  papers had  been tampered. The      aforesaid tampe- 1328      ring  was  in  the  column  opposite  the  name  of  S.      Gurcharan Singh Tohra."      If the  allegations in  the petition  coupled with  the evidence of  PW.2,  M.  S.  Khera,  the  counting  agent  is evaluated, what  further proof  was needed for inspection of ballot papers?  His cross-examination on the relevant point, to say  the least,  is inept  and the  witness has  remained unshaken. It  was, however, contended that evidence of M. S. Khera should not be accepted because he is an interested and partisan witness and his evidence lacked credibility because there was  no contemporaneous  follow up action taken by him by raising objection in writing and as a practising advocate he was expected to know that such a serious malpractice when noticed  by   him  should   have  found   its  place   in  a contemporaneous written  record. It  was said  that  he  was aware of  the  necessity  of  raising  a  written  objection because on  an earlier occasion he in fact did so when voter Shri Karnail  Singh Marhari  had shown  his ballot  paper to Shri Prithi  Pal Singh  which is  impermissible. It was also said  that   election  petitioners   after  making   serious allegations in  the petition,  shunned the  witness box and, therefore, the case should be rejected. The criticism is not well merited.  Non-appearance of election petitioners in the witness box  has to  be appreciated in the background of the nature  of  allegations.  And  let  it  be  noted  that  the

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appellant against whom various allegations were made equally shied off  from the  witness box.  Further, in  view of  the nature of  allegations, P.W.  2 M.  S. Khera  and  the  four voters would  provide the best evidence. The accusation that P.W. 2  M. S.  Khera is  not an  independent witness  may be appreciated in  the light  of the  fact that  in an election fought on  party lines the election agent, the polling agent and the  counting agent of any candidate would ordinarily be one who  shares his political philosophy and owes allegiance to the  party discipline.  The undisputed fact that he was a counting agent  establishes his  presence  at  the  relevant time. After postal ballot papers were taken out and mixed up and then  unfolded for  the  purpose  of  counting,  if  the counting agent  keeps a  watchful eye  he is bound to notice the glaring  tampering. He did in fact lodge an oral protest and at  his instance recount was ordered thrice. His failure to prepare  and submit  a contemporaneous  written record of what he  had noticed cannot detract from his evidence. And a written contemporaneous  protest at  the counting  is not  a condition precedent  to  filing  an  election  petition  for recount. It  thus clearly  transpires that the allegation in the petition coupled with the evidence of 1329 M. S.  Khera would rather satisfy the test laid down by this Court, namely  that the  learned judge  had material  to  be prima facie  satisfied that  in order  to decide the dispute and to do complete justice between the parties an inspection of ballot  papers was necessary. The discretion used in this behalf is amply justified.      Once the  inspection of ballot papers was permitted and the four  voters PW.  13 S. S. Barnala, P.W. 14 Jagdev Singh Talwandi, P.W.  15 Jaswinder  Singh Brar and P.W. 16 Prakash Singh Badal  were examined and each one was shown his ballot paper and each one volunteered to give information as to for whom he  voted, it  became crystal  clear that  their ballot papers were  tampered with.  In an  election of  a member to Council  of   States,  the   election  is  by  a  system  of proportional  representation   by  means   of   the   single transferable vote.  Each voter had to show his preference by marking his  first, second  preference. etc. and he may mark as  many   preferences  as  there  are  candidates.  But  no candidate can  mark his  first preference  for more than one candidate which  if done would render his vote invalid (vide Rule 73  of the  Rules). The four voters in their respective evidence emphatically  stated that each one of them cast his first preference  vote in  favour  of  the  Akali  candidate respondent 1  and did  not cast  second preference  vote  in favour of  any one else. Their ballot papers show that their first preference  is in  favour of the appellant a candidate opposed to  the Akali candidate and the second preference is in favour of the Akali candidate. This evidence was objected to on  two grounds,  firstly, that  it violates  secrecy  of ballot,  and  secondly,  that  the  witnesses  answered  the question and  there is nothing to show that they volunteered the information.  When it  is said  that no witness would be required to  disclose for whom he has voted it does not mean that he  cannot  be  questioned  but  it  merely  implies  a privilege of  the voter  to refuse  to answer  the  question without  incurring   any  liability   and  if   the  witness volunteers the  information even in answer to a question, s. 94 of  the Act  is not  violated. Coupled  with this  is the evidence of  the expert  P.W. 17  Dewan K.  S. Puri. On this evidence it  is affirmatively  established that  these  four ballot papers  have been tampered with and the alteration of ballot papers  disclosing tampering is to the effect that in

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each case  the voter  cast his  first  preference  vote  for respondent 1  which was  altered to  show second  preference vote,  and  against  the  name  of  the  appellant  a  first preference vote  is indicated.  A  mere  casual  or  cursory glance at  the four  ballot papers would convince even a lay man that these ballot papers have been tampered with. To say the least, 1330 the tampering  is rather  crude and  lacks finnese.  In  the light of  this evidence  R.W. 1  Partap Singh, the Returning officer, cuts  a  sorry  figure.  He  has  an  ostrich  like attitude because  he observes no tampering. His evidence has to be discarded.      Mr. Mridul frankly said on behalf of the appellant that the finding  of the  learned judge  that these  four  ballot papers have  been tampered  with is  not questioned  in this appeal. With  his usual fairness he said that this Court may proceed upon  the basis  that these  four ballot papers have been tampered  with. He  made it  abundantly clear  that the limited concession  on behalf  of the  appellant is that the four ballot  papers show  overwritings and difference in ink and the use of different instruments. This concession spares us the  agonising task  of reappraisal  of evidence  of  two experts. But  even here  both the  experts are  agreed  that there is  overwriting, the  variance  being  the  source  of overwriting. In fact, in an election appeal under s. 116A of the Act  this Court  does not  ordinarily interfere with the finding of  fact reached by the High Court particularly when the High  Court comes to a conclusion on appreciation of all material evidence  placed before  it. As  a  corollary  this Court would  be slow to interfere with such findings of fact based on  appraisal of  evidence unless  there is  something radically wrong  with the  approach  of  the  learned  judge trying the  election petition  (see Ramji  Lal v.  Ram  Babu Maheshwari &  Anr.,(1) D. Gopala Reddy v. S. Bai Talapalikar & Ors and Sumitra Devi.(2)      It must, therefore, be held succinctly established that the four  ballot papers  of the  four  witnesses  have  been tampered with  and if  their evidence is to be accepted, the tampering is  to the  effect that  each one of them had cast his first  preference vote  in favour of respondent 1 but it was altered to show that it was a second preference vote and the  first  preference  vote  was  cast  in  favour  of  the appellant.      Mr.   Mridul,    however,   contended   that   in   the circumstances disclosed  in this case a possibility that the tampering was  indulged into  by the very four voters cannot be ruled  out and  it is impermissible to further probe into the matter.  This argument  has merely to be mentioned to be rejected. Eight  postal ballot  papers were received. Out of the detained  M.L.A. voters  under Maintenance  of  Internal Security Act,  seven belonged  to Akali Party and one to Jan Sangh. Akali Party and Jan Sangh had alig- 1331 ned against  Indian National Congress. Detenus exercised the option  of   voting  by   postal  ballot.  Strength  of  the constituency.  i.e.  Punjab  Legislative  Assembly  and  the Partywise strength at the relevant time was under :      Indian National Congress                    65 members.      Communist Party of India                    10 members.      Akali Party                                 25 members.      Jan Sangh                                    1 member.      Communist Party (Marxist)                    1 member.                                              ---------------                                         TOTAL : 102 members.

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                                            --------------- Indian National  Congress and  Communist Party  of India had aligned in  this election. Similarly, Akali Party, Jan Sangh and Communist  Party (Marxist)  had aligned  in  opposition. Now, when  the election  is by  the system  of  proportional representation by  means of the single transferable vote, it is  easy   to  work   out  the  mechanics  of  voting  party strengthwise after  ascertaining the  quota. Being conscious of the  position the  Indian National  Congress fielded only two candidates.  Appellant was not a candidate of the Indian National  Congress.  He  was  in  fact  claiming  to  be  an independent candidate  but the  respondents contend  that he was supported  by the  then Chief  Minister Giani Zail Singh who was  keen to  snatch the third seat though on the purely arithmetical calculation  and partywise  voting there was no ghost of  a chance  for him  to be  elected. The  quota  was worked out  at 25.51 first preference votes. Even if the two official  candidates   of  Indian   National  Congress  were assigned specific  votes to  the exent  of quota  only,  the third candidate  supported by that party would have 14 first preference Congress  votes and  10 first preference votes of the Communist  Party  of  India.  Against  that,  the  Akali candidate would have 27 first preference votes. As a measure of abundant caution the Congress Party seems to have divided its votes  between two of its candidates as would be evident from the result of voting that the two candidates secured 29 and 27  first preference  votes. Thus  56  first  preference votes from among the combined strength of 75 of the Congress and Communist  Party of  India were  appropriated by the two official candidates.  The  third  candidate  could  at  best expect 19  first preference  votes. He  has secured 23 first preference votes.  Mr. Mridul  urged that  these four voters deliberately pretended  to vote for Akali Party candidate so as to  avoid any  disciplinary action by the Akali Party but in fact  they were  keen to  vote for  the  appellant.  This necessitates examination  of who  these four voters are. Out of 1332 the four,  one is  Sardar S.  S. Barnala  who, when  be gave evidence, was  Member of  Parliament elected on Akali ticket an associate of Janata Party and was a Member of the Central Cabinet. Second  was Sardar  Parkash  Singh  Badal  who  was elected on  Akali ticket and associated with Janta Party and joined first  as Cabinet  Minister in 1977 March when Janata Party was  returned to  power in  1977 general elections and then subsequently  he became  Chief Minister  of Punjab. The third was  Sardar Jagdev  Singh Talwandi who was a member of working committee and subsequently became the Vice President of Akali  Dal and since the death of Sant Fateh Singh he was President of  the Akali  Dal. The  last is  Sardar Jaswinder Singh Brar who was elected to Punjab Legislative Assembly on Akali ticket.  He had  courted arrest  in response to a call given by  the Party.  He became  a Minister when Akali Party formed Ministry after the election to the Punjab Legislative Assembly in 1977. Coupled with this is the fact that all the four were  arrested under  Maintenance of  Internal Security Act by  the Government  led by  Giani  Zail  Singh  who  was alleged to  be supporting  the appellant  in his  bid to get elected. Even  though it  is pointed  out  that  there  were defections from  the Akali  Party it is difficult to believe that these  members who  belonged to  the hard  core of  the Akali Party,  denied their  liberty by  a Party in power and opposed to  it, would  ever contemplate voting for a protege of the  Chief Minister  whose Government was responsible for deprivation of their liberty. Again, these four persons were

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detained in  three different  jails. There was no meeting of the minds  that in  each  case,  unless  a  case  of  mental telepathy is  made out,  each started  with a  hesitation to vote for  Akali Party and, therefore, voted for respondent 1 and before  the ballot  paper  was  sealed  in  an  envelope specially provided  for the  same he  changed his  mind  and indulged  into   overwriting  indicating   that  the   first preference vote  was cast in favour of the appellant. Unless a number  of fortuitous  circumstances  and  some  untenable surmises are  indulged into,  it is  impossible to entertain this contention. And as for defections from Party, less said the better  in  this  judgment  because  like  the  biblical phrase. "Let  that man  cast the  first stone  who  has  not committed a  sin", similarly,  "Let that  Party complain  of defections whose  birth is  not rooted  in defections or has not suffered defections". And against this innuendo there is the  evidence   of  the  four  witnesses  to  whom  no  such suggestion was  made and  it has  remained unshaken.  Common course of human conduct and prudent man’s approach militates against acceptance of such contention.      It is,  therefore, an inescapable conclusion that after each of  these four voters cast his first preference vote in favour of the Akali candidate and handed in sealed envelopes but before the envelopes contain- 1333 ing the  ballot papers  were opened  at the time of counting someone has  indulged into  mischief of tampering with these votes. That  the votes  have been tampered with has not been questioned.  The  nature  of  tampering  and  the  advantage derived thereby is self-evident.      The question  then is,  who would be interested in this tampering ?  It must  be confessed  that there  is no direct evidence on this point and presumably there could be none on such a  point unless  some accomplice betrays the confidence of the  conspirators. Petitioners  made serious  allegations against the  Returning Officer but that again is a matter of surmise. It  is not  possible  to  say  that  the  Returning Officer obliged  the  then  Chief  Minister  and  was  amply rewarded. So  also we  need not  examine the suggestion that the Sub-Post Master was amply rewarded. The most uncongenial fact that  stares into  the face  is that  these four ballot papers  have  been  tampered  with  and  the  tampering  has benefited none else than the appellant. We say no more.      The second  limb of the submission was that even if the tampering of  the four ballot papers is held proved, in view of the provision contained in s. 64A of the Act the election petitioners could  have obtained  relief from  the  Election Commission as  befit the  circumstances of  the case but not the relief granted to them. Section 64A(i) reads as under:-           "64A. Destruction, loss, etc., of ballot papers at      the time  of counting-(1)  If at  any time  before  the      counting of  votes is  completed any ballot papers used      at a  polling station  or at a place fixed for the poll      are  unlawfully   taken  out  of  the  custody  of  the      returning officer  or are accidentally or intentionally      destroyed or  lost or  are damaged or tampered with, to      such an  extent that  the result  of the  poll at  that      polling station  or place  cannot be  ascertained,  the      returning officer  shall forthwith report the matter to      the Election Commission".      Undoubtedly s.  64A  comprehends  tampering  of  ballot papers used  at a polling station to such an extent that the result of  the poll  at that  polling station  cannot be  so ascertained, and  in that  event the procedure prescribed in that section  can be  availed of.  Section 64A  envisages  a

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situation where  tampering, damaging, destruction or loss of ballot papers  used at  a polling station is on such a large scale that  the result  of the  poll at that polling station cannot be  ascertained. Such is not the situation. Here four ballot papers  received as postal ballot papers are shown to have been  tampered with.  They  were  sent  from  different jails. It  cannot be said that because of this tampering the votes cast by the ballot papers could not be ascertained. On the 1334 contrary they can be succinctly ascertained and have in fact been ascertained.  Therefore, s. 64A is not attracted in the facts and circumstances of this case.      Alternatively  it  was  contended  that  where  certain ballot papers are shown to have been tampered with, all that a Court  ought to do is to ignore them and it is not open to the Court  to attempt  to ascertain  as to for whom the vote was cast.  Support was  sought for  this proposition from an observation of  this Court in Jagannath Rao v. Raj Kishore & Ors.(1) wherein,  after recording  a finding that the ballot papers have been tampered with in the High Court at the time of inspection  it was observed that in the circumstances the only proper  course was  to proceed  on the  basis that  the decision of  the Returning  Officer should be presumed to be correct, and  there was no point in the Court trying to find out as to which candidate had obtained more valid votes. The decision does  not purport  to lay  down a wider proposition canvassed on  behalf of  the appellant  in this case that as soon as  it is  shown that  some  ballot  papers  have  been tampered with,  the Court has merely to chart an easy course of rejecting  those ballot  papers. Such  an approach, apart from anything  else, would  be a  premium on unfair election practice. Where  voting is  by the  system  of  proportional representation by  means of the single transferable vote, if a tampering  as of  the nature indulged into in this case is brought to  light, the  necessity of  rejecting such  ballot papers as invalid would give an unfair advantage to the very person who  indulged into  such practice.  Rule 56  of  1961 Rules would  shed some  light on  this point.  Sub-rule  (2) provides various  situations in  which the returning officer is under an obligation to reject a ballot paper. It does not refer to a tampered ballot paper though it refers to damaged and mutilated  ballot paper and how it should be dealt with. Sub-rule (2)  further provides that every ballot paper which is not rejected under the rule shall be counted as one valid vote. And  in this case the Returning Officer did not reject the ballot  paper as being invalid. In such a situation once tampering is  held proved  if the  circumstances permit  and evidence of  unquestionable character  is available it would be  perfectly  legitimate  for  the  Court  in  an  election petition to  ascertain for  whom the vote was cast before it was tampered  with and  if it  can be ascertained as a valid vote it  must be accepted as such. Any other approach has an inbuilt tendency  to give  an unfair advantage either to the candidate who  himself might  have indulged  in tampering or someone who must have acted for his benefit.      In this context it was further contended that the Court should not  examine the  question of  benefit  which  is  an equitable principle 1335 as it  belongs to  the doctrine  of equity  known as that of unjust enrichment.  This question  does  not  arise  in  the situation disclosed  in this  appeal and it is not necessary to examine the same.      It was  lastly contended that the grievance made by the

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election petitioners  in  the  petition  and  sought  to  be established in  the case  could not be comprehended under s. 100 of  the Act  and, therefore,  no relief could be granted either to  respondent 1  or  to  the  election  petitioners. Section 100  sets out  grounds for  declaring election to be void. The  relevant portion of s. 100(1)(d)(iii) provides as under:           "100. Grounds  for declaring  election to be void-      (1) Subject to the provisions of sub-section (2) if the      High Court is of opinion-           (d)  that the result of the election, in so far as                it concerns  a returned  candidate, has  been                materially affected-                 (iii) by  the improper reception, refusal or                     rejection of  any vote  or the reception                     of any vote which is void,           the High  Court shall  declare the election of the           returned candidate to be void".      Section 100(1)(d)(d)(iii) comprehends a situation where the result  of an  election in  so  far  as  it  concerns  a returned candidate  has been materially affected by improper reception, or  improper refusal of any vote or the reception of  any   vote  which  is  void.  The  objective  ’improper’ qualifies not  only the  word ’reception’  but also the word ’refusal’. When  a vote is received by the Returning Officer at the  time of  counting it  implies two things, that it is not only received as a valid vote but that the valid vote is cast in  favour of  one of  the contesting candidates at the election. Similarly,  when it is said that there is improper refusal of  any vote  it implies  again two  things, viz., a vote which  ought to  have been  accepted as  valid vote has been improperly  refused as  an invalid vote, or there is an improper  refusal   to  accept  the  vote  in  favour  of  a particular candidate.  On a pure grammatical construction of the relevant  clause it  cannot be gainsaid that an improper reception of  any vote  or an  improper refusal  of any vote implies not only reception or refusal of a vote contended to be invalid  or valid,  as the  case may  be, but  consequent reception in  favour of  any contesting  candidates  at  the election which  would simultaneously  show  the  vote  being refused in  counting to any other candidate at the election. The expression  ‘refusal’ implies ‘refuse to accept’ and the expression ‘reception’  implies ‘refuse  to  reject’.  Apart from the  setting and  the context in which the clause finds its place,  in its  interpretation it is to be borne in mind that it seeks to specify one of the grounds for 1336 declaring an  election to  be void.  In this  situation  the expressions ‘improper reception’ and ‘improper refusal’ have to be  interpreted as would carry out the purpose underlying the provision contained in s. 100.      In the  instant case the contention is that each of the four voters  cast his  first preference  vote in  favour  of respondent 1  and did not cast any second preference vote at the time  when each  of them  exercised  his  franchise  and subsequently these  four ballot papers were tampered with by altering them  to show that not only each of the four voters cast both first and second preference votes but each of them had  cast  his  first  preference  vote  in  favour  of  the appellant and second preference vote in favour of respondent 1. If  once tampering is held proved and not controverted in this appeal,  keeping in  view the  direct testimony of four voters that  each one of them signified his first preference vote in  favour of respondent 1, the action of the Returning Officer in counting these votes as first preference votes in

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favour of  appellant, would  imply improper reception of the first preference vote in favour of appellant for whom it was not meant  to be  and simultaneously it would imply improper refusal by  the Returning  Officer to count these four votes as first preference votes in favour of respondent 1 and also concluding that each of them had not exercised his franchise of second  preference vote.  What was said before this Court was, and  we would  accept it  as a limited concession, that the four  ballot papers  show overwritings and difference in ink or  different instruments  used, it would unquestionably establish that what these four ballot papers purported to be at the  time of counting were not the ballot papers in their original condition  when the  four  voters  exercised  their franchise. In  such a  situation it  was the bounden duty of the Returning  Officer at  the counting  as per  the  second proviso  to  sub-rule  (2)  of  rule  56  to  ascertain  the intention of  the voter by finding out for whom the vote was cast and  add the  vote for  the candidate  for whom  it was meant to  be. Proviso  to sub-rule (2) shows that the ballot paper shall  not be  rejected merely  on the ground that the mark indicating  the vote  is indistinct  or made  more than once, if  the  intention  that  the  vote  shall  be  for  a particular candidate  clearly appears from the way the paper is marked.  Shorn of  tampering, the intention of each voter was clearly  indicated and  if the  gloss of  tampering  was removed the  Returning Officer  would have  no difficulty in ascertaining  the   intention  of   the  voters   after   so ascertaining the intention count the vote accordingly. It is not open  to him  to  take  an  easy  escape  route  as  was contended in  this case  that once  tampering is  shown, the ballot paper  should be rejected as invalid. The Court in an election petition will have to undertake this exercise. 1337      The ground  on which  the  election  is  sought  to  be avoided in  the election  petition is  clearly covered by s. 100(1)(d) (iii).  Even apart  from this, this position is no more res  integra in  view of the decision of a Constitution Bench of  this Court  in Mohinder Singh Gill & Anr. (supra). Krishna Iyer,  J., has  neatly summed  up all  embracing and pervasive panorama covered by s. 100 which reads as under :           "Knowing  the   supreme  significance   of  speedy      elections in our system the framers of the Constitution      have, by  implication, postponed  all election disputes      to election  petitions and  tribunals. In  harmony with      this scheme  s. 100  of the  Act  has  been  designedly      drafted to  embrace all  conceivable infirmities  which      may  be   urged.  To  make  the  project  foolproof  s.      100(1)(d) (iv)  has been  added to  absolve  everything      left over. The Court has in earlier rulings pointed out      that s.  100 is  exhaustive of all grievances regarding      an election".      Therefore, the  wide comprehensive  panorama of  s. 100 will certainly  embrace the  grievance made  by the election petitioners in  this petition.  Conversely, s.  80  provides that no  election shall  be called  in question except by an election  petition   presented  in   accordance   with   the provisions of Chapter II in the Act. Section 100 which finds its place  in Chapter  III sets  out grounds  for  declaring election to be void. If the contention of the appellant that the grievance  for voiding the election made in the petition is not  comprehended in any of the sub-sections of s. 100 is accepted and  there is  no other  provision in  the Act  for voiding election,  the election petitioners would be without a remedy.  It would  mean that  even though  one can indulge into forgery-what  is tampering  of ballot  papers,  if  not

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forgery,-and get away with it. In order to ensure the purity of election it is better to so construe s. 100 as to embrace within its fold, as has been done by the Constitution Bench, all conceivable  infirmities which  may be urged for voiding an election. Therefore, the contention of the appellant must be negatived.      Having examined  all the  contentions of  the appellant with care  that an election appeal deserved, I find no merit in any  of them  and accordingly  this appeal  fails and  is dismissed with  costs.  Hearing  fee  in  one  set.  Interim relief, if any, granted during the pendency of the appeal is hereby vacated.      GUPTA, J.  I agree  with the  order made  by my learned brother Desai,  J. and the essential reasoning in support of it. S.R.                                       Appeal dismissed. 1338