CASE NO.: Appeal (civil) 2475 of 2006 PETITIONER: Nayani Narasimha Reddy RESPONDENT: Dr. K. Laxman & Others DATE OF JUDGMENT: 05/05/2006 BENCH: P.K. BALASUBRAMANYAN JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No.6785 of 2005)
P.K. BALASUBRAMANYAN, J.
1. I respectfully agree with the reasoning and
conclusion in the judgment just pronounced by my
learned brother.
2. Section 94 of the Representation of the People
Act, 1951 (for short, the Act) provides that a voter in an
election, when summoned as a witness in an election
petition, cannot be compelled to disclose for whom he
has voted. The words, “shall be required” place a bar on
any such compulsion. The Court, as of right or by
authority, cannot compel the voter summoned as a
witness, to disclose his preference. The sub-heading to
Section 94 of the Act indicates that the bar is intended
to preserve the secrecy of the ballot.
3. The rule against testimonial compulsion, in a
case governed by Section 94 of the Act, will have to be
approached from two angles. The initial question is
whether the witness would have to incriminate himself
while giving evidence. The privilege against self-
incrimination in the words of Lord Goddard L.J. is that:
“No one is bound to answer any question
in civil or criminal proceedings if the
answer thereto would in the opinion of the
judge have a tendency to expose the
deponent to any criminal charge, penalty
or forfeiture which the judge regards as
reasonably likely to be preferred or sued
for”
(See Blunt v. Park Lane Hotel (1942) 2 K.B. 253 at
page 257)
4. The privilege against self-incrimination is to be
claimed by the witness. The right becomes available
only after the witness has taken the stand and a
question that offends the privilege is put to him. A
prospective witness or some other person (as in the
present case) cannot raise such an issue in anticipation
of an apprehended breach of privilege against self-
incrimination. Phipson referring to a number of
authorities on the point states:
“It may be taken by the witness in
refusing to answer a question; the witness
cannot refuse to go into the witness box:
he can only claim privilege after he has
gone into the witness box and been sworn
and the question put. The court must
determine from the circumstances of the
case and the nature of the evidence the
witness is called to give whether there are
grounds for the privilege being invoked
and grounds to “apprehend danger.” The
mere fact that a party swears that his
answer would tend to criminate him is not
conclusive. Once the danger is made
apparent great latitude should be allowed
to a witness asked questions in giving
evidence in judging for himself of the effect
of any particular question.
The privilege must, unlike other
forms of privilege, be claimed on oath by
the person asserting it on his own behalf,
not his solicitor. Nevertheless, it might be
necessary for evidence to be led from
others to support the claim. It is not
necessary to explain precisely why the
evidence would incriminate, as that might
undermine the privilege.”
[Phipson on Evidence, 15th Edn., page
564]
It is clear that Section 94 of the Act only confers a
privilege on the witness and that he would be at liberty
to waive it and give evidence on his electoral preference.
The argument based on Section 94, at the instance of
the appellant, on the ground of a perceived threat of
self-incrimination of the prospective witness, is
misconceived. The appellant cannot thrust the privilege
under Section 94 of the Act on the prospective witness.
The appellant cannot deprive the witness of the right to
take his own decision in the matter as and when he
takes the witness stand and a question on his electoral
preference is put to him.
5. The second question is whether, the evidence
of the witness would breach the secrecy of the election
process. It has been held by this Court in S. Raghbir
Singh Gill v. S. Gurcharan Singh Tohra and others
[(1980) Supp. SCC 53] and A. Neelalohithadasan Nadar
v. George Mascrene and others [(1994) Supp. (2) SCC
619] that the purity of the election process is more
important than the privilege conferred by Section 94 of
the Act. This Court has recognized that the secrecy of
voting could be breached to subserve a larger public
good, namely, to prevent a fraud on the election process.
My learned brother has dealt with this aspect and I am
in agreement with him.
6. In the present case, we must also note two
incidental aspects that stand in the way of accepting the
plea of the appellant. The arguments based on Section
94 of the Act are not being raised by the prospective
witness but by a third person. The stage at which the
plea is raised i.e. even before the witness has actually
taken the witness stand is also significant. The
appellant cannot seek to prevent the witness from taking
the stand. He cannot also seek to curb the power of the
Court to summon the witness.
7. In the above situation, neither the privilege
against self-incrimination nor the secrecy of the election
process stand in the way of a voter being summoned as
a witness in an election petition. The power of the Court
under Order XIV of the Code of Civil Procedure, 1908, on
application by the parties or suo moto to summon any
person for his attendance in Court and its power to
summon any person to produce any document remains
unaffected by Section 94 of the Act. The power of the
Court to summon a witness is one thing, the privilege of
a witness not to answer a question put to him is
another. The witness would be free to claim privilege
under Section 94 of the Act and can refuse to reveal for
whom he has voted. However, if he is willing to disclose
his electoral preference he is entitled to do so.
8. Hence, I too would dismiss the appeal.
