# RAGHBlR SINGH GILL v. GURCHARAN SINGH TOHRA & ORS - **Citation:** [1980] 3 S.C.R. 1302 - **Court:** Supreme Court of India - **Decided:** 1980-05-09 - **Case number:** Civil Appeal No. 1035 of 1978 - **Bench:** A. C. Gupta, D. A. Desai - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raghblr-singh-gill-v-gurcharan-singh-tohra-ors-7995 - **Pages:** 36 ## Headnote 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 !OO(d)(l) (iii) of the Act and void elections--Petition for recount, when to be ordered-Non-appearance of election Petitioner in tile witness box, whether vitiates the petition-Interference by Supren1e Court in an election petition. An election petition waS :filed by the respondent against the appellant, a returned oo.ndidate1 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 al>pellant by it8 agents and also commission of corrnpt 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 baHot papers one each allotted to iP.Ws. (the voters) Nos. 13, 14, 15 and 16 were tampered with in that each the voter had cast his firn 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 prefer· ence 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. Its scope, ambit and underlying object must be a!certained 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, b~ 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 performooce indicated by the dumb-sealed lip voter in the ballot paper. That is his right and the trust reposed by the Constitution in him ~ that he will act as a responsible citizen choosing his masters for governing the countiy 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 democrapellant by it8 agents and also commission of corrnpt 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 baHot papers one each allotted to iP.Ws. (the voters) Nos. 13, 14, 15 and 16 were tampered with in that each the voter had cast his firn 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 prefer· ence 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. Its scope, ambit and underlying object must be a!certained 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, b~ 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 performooce indicated by the dumb-sealed lip voter in the ballot paper. That is his right and the trust reposed by the Constitution in him ~ that he will act as a responsible citizen choosing his masters for governing the countiy 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 democra1ccords with reason and fairplay. [1318 E-G] Ma,or 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 imperati_ve 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 bas 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 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 expres- -sion ffother person" extends the protection to a forum outside courts. Sec· tion 94, therefore, cannot be singled out as a substantive provision and being unrelated to the procedure prescribed . for trial of election petitioo. [1314 A, B, E, F, 1315 A, F-G, 1316 C-F] Dr. Chhotalal Jivabhai Paiel v. Vadilal Lallubhai Mehta and Ors. (1971) 12 Guj. LR. 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 ad.mi~ of n? exception in which he can divulge his vote, and secon?JY, that 1t is a pnvilrge of the voter to disclose his vote if he voluntarily ~hooses to do so c D E F G H A B c D E F G 1304 SUPREME COURT REPORTS [1980) 3 S.C.R. but he cannot be compelled by court or any other authority to divulge his. vote. [1318 G·H, 1319 Al If s. 94 is interpreted to mean to be e. privilege of the voter to divulge or not to divulge how he voted and if he chooses not to divulge, s. 94 pro 4 tects 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 \Vithout 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 with· out 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 couit 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, 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 J,, in larger public interest. Jn fact secrecy of ballot, a privilege of the voter, f 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 ...,.....-1 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 fa.ir ele'ction. [1322 D-E] B Queen v. Beardsall, LR [187'.5-76] 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 'f.' RAGHBIR SINGH GILL v. GURCHARAN SINGH 1305 privilege ends there for if he desires to waive the privilege and volunteers to A give information as to for whom he voted, neither s. 94 noi 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] B (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 lo waive it. And where a voter waives his privilege not to be compelled to disclose for whom he voted, if he wants to nm !he gamut of risk of disclosure it does not violate any other principle because it was enacted lo help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. (1321 E-G] Basheshar Nath v. lhe Commissioner of Income.tax, Delhi & Rajastha.n and Another, [1959] Suppl. I S.C.R. 528 at 610; Bthram Khurshed Pesikaka v. The State of Bombay, (1955] I S.C.R. 613 at 654 applied. (10) A recount of votes cannot be ordered just for the asking. A peti: tion for recount after inspection of some bB.Ilot papers must contain an ade· quate statentent of material facts on which the petitioner relies in support of his case. The Tribunal must be prima facle satisfied that in order to decide the dispute end 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 fu,rther assurance to the prima facle satisfaction of the Court regRrding the truth of the allegations- Jl}ade for a recount and not for the purpose of fishing out materisls for declaring an election void. [1324 H, 1325 A-C] litendra Bahadur Singh v. Krishna Behari & Ors., (1970] I 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 Gopa/ Singh & Ors., (1976] I S.C.R. 191; and R. Narayanan v. S. Semma/ai & Ors. [1980] I S.C.R. 511 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 app· reciation 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 app~ roach of the learned judge trying the election petition. [1330 C-EJ Ram/i Lal v. Ram Babu Maheshwari & Anr. A.IR 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. 24-610SCI /80 c B E .. G H B c I) 130_6 SUPREME COURT REPORTS [1980] 3 S.C.R. (12) A petition for a recount on the allegation of n1iscount 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 i in fa.vour of a candidate· not entitled to the same and improperly refused in favour of the candidate entitle.:J. to the same and therefore there is a miscount and a recount is necessary, In the very nature of things the "t allegation can be not on each specific instance of an error of counting· or miscount but broad ~llegations' 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 CJ (13 To avail of the procedure prescribed in s. 64A of the Act the con- y ditions prescribed in that section must be satisfied. Section 64A envisages \ a situation where tampering, damaging, destruction or loss of ballo!. papers used at a. polling station is on such a large scale that the result of the poll at the polling station C{lnDOt 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 sh(.lWL. 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 niJt purport to lay down that as soon as it is shown that some ballot papers have been tampered "1th, the Court has merely to chart an E 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 indnl· ged into such pr3.ctice. When the Returning Officer did not reject the F 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 CoWt 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 t an inbuilt tendency to give an unfair advantage either to the candidate who G himself might have indulged in tampering or someone who must haVe acted .f for bis benefit. [1334 C-G] H (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 afiect:ed by improper reception, or improper refusal of any vote o. tile recept;on of. any vote which is yoid. The adjeotive 'im· proper' qualifies not only the wo·rd 'reception' but also the word ~refusal'. When a vote is received by the returning officer at I RAGHl!lll SINGH GILL v. GURCHARAN SINGH (Desai, !.) 1307 tire time of counting it implies two things, that it is not only A 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 4 .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 · in1properly 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 B 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 exp~ion 'reception' implies 'refuse to reject'. [1335 D-HJ y·- ( 16) The wide comprehensive panoram~ of s. 100 of the Representation C ' 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] M-ohinder Singh Gill v. The Chief Election Conzmissioner, New· Delhi & D 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. E 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. ~f 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 Council of States. On March 3, 1976, a notificatio,n was issued· calling upon the memb.ers t--r of Punjab Legislative Assembly to elect three members to the Council of States. The election programme was : March 10, 1976, wa& prescribed as the last date for filing nominations; the scrutiny of the nominations was to be made on March 11, 1976; March 13, 197.6, q: Wiil! the last date by which it was permissible to withdraw Jrom the e)ection; in the event of contest, poll was to take place on Mareh 27, A 1308 SUPREME COURT REPORTS [1980} 3 s.c.R. 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 indeJ.. pendent candidate. Respondent 1 Gurcharan Singh Tohra was a nominee of the Akali Party. As there were three seats and B four candidates, poll was conducted on March 27, 1976. The voting was in accordance with ihe system of proportional representation by means of the single transferable vote. Counting took place on th~ same day after the poll closed at the prescribed hour. Two candidates of the Indian National Congress, Smt. Amarjit Kaur and 5at Pal Mittal c E secured 29 and 27 first pred'erence votes respectively. Appellant secured 23 ftrst preference votes. Responden! 1, the Aka1i nomin~ also seoured 23 first preference votes. The quo;a was 25.51 votes. Accordingly, Smt. Amarjit Kaur and Sat Pal Mittal who had secured first preference votes in e;xcess 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 Respondents1 Z 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 electiOil of the present appellant has been materially affected (i) by non- ~ compliance 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 hisi 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 Sin~ was the Chief Minister of Punjab at the relevant time and it was "If' who had put up the appellant as a candidate even though the mem~s of the Assembly belonging to Indian National Congress computing their voting strength in the Assembly had only fieldeii two candidates , l G Smt. Amarjit Kaur and Sat Pal Mittal. The Chief Minister Giani Zall Singh in order to snatch the third seat not legitimately available, fielded appellant as his candidate and to secure his \)lection, power of office was abused. Seven members of Assembly belonging to Akali Party T"~ and a lone Jan Sangh ML A. were detained under the Maintenance of Internal Security Act, the detenns included P.W. 16 S. Parkash B 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 RAGHBIR SINGH GILLY. GURCHARAN SINGH (Desai, ],) 1309 Nabha, P.W. 13 S. Surjit Singh Barnala,. detained in Jail at Jullwidur, S. Gurbachan Singh and S. Kundan Singh, Patang, detained in Jail at -""' Sangrur, all belonging to Akali Party and Dr. Baldev Prakash belonging to Jan Sangh. These detenus applied for postal ballots with a t view to exercising their right of franchise and they did in fact exercise 'tlleir 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 ofrespondent 1, Gurcharan Singh Tohni, the Akali candidate was altered to show second preference vote as also to indicate .a first preference vote .in favour of the, appellant. This w:is noticed by PW. j 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, Sfugh, the Returning Officer, Sardar Tirth Singh Sobti, a Sub-Po8t Master and the Superintendents of Jails at Sangrur, Patiala and Nabha, fQr facilitating the. tampering and thereby four additional first preference vote!; 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 wa8 self-evident, they, the petitioners were not in a positionl to State ~ exact method adopted in this behalf. The allegati0n of corrup~ practice was that Y with the assistance of Chief Minister Giani Zall Singh official machinery was pressurised and utilised to ge~ the appellant elected. To· the election petition the returned cindidite, Dimily, Hliii pnient appellant whose election was called in queition, two other returned candidate!I and the defeated Akali candidate were impleaded as respondents. . The returned candidate, the present appellant contested the peti- ';J!on, inter alia'. contending th~t the whole petition is based on conjec- 'Tbres and surmises. The allegation of corrupt practice wu firmly denied. He also denied his relationship with Giani Zai1 Singh and further denied that he was a candidate put up by Giani Zall Singh. Any allegation of ta111pering was denied and it wa$ cootended that Akllli Party pr~sented a picture oll a house divided and, therefore,. the sumrtso made . that members belonging to the Akali Party would en block vote . for the Akali candidate is not justified. It was contended that th" peti- ~oners as admitted by them in the petition were/ not in a position to state the exact method and procelis adopted by the Returiiing Officer and his accomplices in tampering with the postal ballots, and, therefore, th~ cai:e put forth in the petition is a figment of imagination, devoid of particulars and the petition m liable to be thrown out Ori this ground. A B c D E F G R A B c D E p G 1310 SUPREME COURT REPORTS [1980] 3 s.c.R. The le.arned 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? Tbe central issue was whether four bl!Jlot 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 favoor of the returned candidate by changing the figure I placed against the name of the Akali candidate into figure Il 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 ~nd counted in favour of the returned candidate and improperly refused t