LexNAYINI NARASIMHA REDDY versus DR. K. LAXMAN AND ORS.
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A B NA YIN! NARASIMHA REDDY v. DR. K. LAXMAN AND ORS. MAY 5, 2006 [S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.] Representation of the People Act, 19 5 l-Section 94-Secrecy of voting- Election petition--Application for issue of summons to the witnesses--Whether C issuance of such summons violative of the rights of secrecy of voting-Held: Issuing of such summons is not violative of rights of secrecy-The Court cannot refuse to exercise its jurisdiction under Order XVI Rule I (2) CPC only on the ground that by reason thereof the privilege of a voter may be violated- The privilege under the provision by the witness is matter of volition-A prospective witness or some other person cannot raise such an issue in D anticipation of an apprehended breach of privilege - Code of Civil Procedure, 1908- ·Order XVI Rule 1(2). In an election petition an application was filed by the defeated candidate praying tor issuance of summons to some witnesses apart from those whose names had been mentioned in the petition. The application was objected to by E the returned candidate contending that in view of Section 94 of Representation of the People Act, 1951, summons could not be issued. The contention was rejected by High Court. Hence the present appeal. F Appellant-returned candidate contended that as the concept of 'secrecy of votes' goes to the root of democracy, any summons taken out to compel a witness to depose before the Court, would be invalid in law, as no witness can be asked to disclose as to in whose favour he had cast his vote.>. Dismissing the appeal, the Court HELD: (Per S.B. Sinha, J.) 1. Section 94 of Representation of the People G Act does not provide for a total embargo on a party to an election petition to cite a voter as a witness. What is prohibited is that he cannot be required to state for whom he had voted at an election. Secrecy of ballots indisputably goes to the root of democracy, but the same may not itself be a ground to refuse issue of summons to the witnesses. Section 94 merely confers a privilege H 902 '-I •• NA YIN! NARASIMHA REDDYv. DR. K. LAXMAN 903 upon a voter. He may even waive his right It is not in dispute that any person A can be produced as a witness by the parties to an election petition. Witnesses so produced on behalf of the parties without any summons being issued would be at liberty to disclose in the court as to in whose favour he had exercised his right of franchise. It is, therefore, evident that the question as to whether a witness will exercise his right/privilege conferred in terms of Section 94 B is a matter ofvolition.1907-E-G] 2. It is one thing to say that the civil court while issuing a summon must exercise its jurisdiction in terms of Order XVI Rule 1 (2) CPC but it is another thing to say that the court would refuse to summon the witness only because a question as regard exercise of the privilege of the witness may arise. C The court may not refuse to exercise its jurisdiction only on the ground that by reason thereof the privilege of a voter may be violated. 1907-H; 908-A] 3. The statute lays down that a witness would not be required to answer a question to disclose as to in whose favour he had exercised his right of franchise either before a court of law or before an authority, but he can D exercise the said right only as a witness. He, therefore, must appear before the court, or before an election tribunal either as a witness of a party whether summoned or not. It is not in dispute that the witness may or may not exercise his right. It is furthermore not in dispute that he may waive the said right. If that be so, it is beyond comprehension of the Court as to how the right of a party to the lis to summon a witness can be denied only on the ground that E the issuance of summons by the court itself would be violative of Section 94. [908-D-F] 4. Secrecy of ballots was necessary for ensuring free and fair elections, but by reason thereof the concept of purity of election cannot be given a go by. F 1911-C-D] S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors., 119801 Supp. SCC 53 and A. Neelaothithadasan Nadar v. George Mascrene and Ors., 11994] Supp. 2 SCC 619, relied on. Per P.K. Balasubramanyan, J. (concurring): I. Neither the privilege against self-incrimination nor the secrecy of the election process stand in the way of a voter being summoned as a witness G in an election petition. The power of the Cour
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