Holding

Issuing summons to voters as witnesses does not contravene Section 94; the court may summon them, and the privilege against disclosure is a matter of volition.

Summary

In the 2004 Musheerabad Assembly election, the appellant N. Narasimha Reddy lost by 240 votes and the respondent Dr. K. Laxman filed an election petition challenging the result. The petition sought summons of several voters as witnesses, alleging that their testimony was essential to prove that the appellant could not have secured zero votes in a particular polling station. The appellant objected, contending that Section 94 of the Representation of the People Act, 1951, which guarantees secrecy of voting, barred the court from issuing such summons. The High Court rejected this objection and allowed the summons, prompting the appellant to appeal. The Supreme Court held that Section 94 merely confers a privilege on a voter not to be compelled to disclose his vote, which can be waived, and does not prohibit the court from issuing summons under Order XVI Rule 1(2) of the CPC. Consequently, the court may summon any person as a witness, and the privilege against self‑incrimination is to be claimed by the witness after taking the stand. The appeal was dismissed.

Issues considered

The issuance of summons to voters as witnesses in an election petition violates Section 94 of the Representation of the People Act, 1951.
Whether the privilege against self‑incrimination under Section 94 can be invoked pre‑emptively to prevent a witness from being summoned.
Whether the court's power under Order XVI Rule 1(2) of the CPC is limited by the secrecy of voting provision.

Legislation cited

Code of Civil Procedure, 1908s. Order XIV, s. Order XVI Rule 1(2)
Conduct of Election Rules, 1961
Representation of the People Act, 1951s. 94

Subjects

Election petitionSection 94Secrecy of votingPrivilege against self‑incriminationSummons of witnessesCivil Procedure CodePurity of electionsVoter privilege

Judgment

A NAYIN! NARASIMHA REDDY
'-I
v.
DR. K. LAXMAN AND ORS.

MAY 5, 2006

B [S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.]

Representation of the People Act, 195 l-Section 94-Secrecy of voting-
Election petition--Application for issue ofsummons 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 ofprivilege - 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.

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
F 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
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]

a
2. It is one thing to say that the civil court while issuing 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): G
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
in an election petition. The power of the Court under Order XIV CPC 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 H
904 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A document remains unaffected by Section 94 of Representation of the People
Act, 1951, 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 and can refuse to
reveal for whom he has voted. However, if he is willing to disclose his electoral
B preference he is entitled to do so. [913-E-G I

2. 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 1

witness or some other person cannot raise such an issue in anticipation of
C an apprehended breach of privilege against self-incrimination. Section 94 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 appellant cannot thrust
the privilege under Section 94 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
D put to him. [912-C; 912-G-H; 913-A-BI

Blunt v. Park lane Hotel, (1942)2 K.B. 253, referred to.

3. The purity of the election process is more important than the privilege
conferred by Section 94. The secrecy of voting could be breached to subserve
E a larger public good, namely, to prevent a fraud on the election process.
(913-C[

S. Raghbir Singh Gill v. S. Gurcharcm Singh Tohra and Ors., (19801
Supp, SCC 53 and A. Neelalohithadasmi Nadar v. George Mascrene and Ors.,
[1994[ Supp. 2 SCC 619, relied on.
F
4. The arguments based on Section 94 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
G witness. [913-D-El

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2475 of2006.

From the Judgment and Order dated 11.3 .2005 of the High Court of
Andhra Pradesh at Hyderabad in E.A. No. 146 of2005 in E.P. No. 4 of2004.

H Harish N. Salve, Jaideep Gupta, R. Santhan Krishnan, Praveen K. Pandey,
NAYINI NARASIMHA REDDYv. DR. K. LAXMAN [S.B. SINHA,J:r. 905
P. Vijay Kumar and D. Mahesh Babu for the Appellant. A
L. Nageshwar Rao, G. Ramakrishna Prasad, Dr. K.P. Kyalasanath, Mohd.
Wasay Khan, Suyodhan Byrapaneni and Venkat Subramaniam for the
Respondents.

The Judgment of the Court was delivered by B
S.B. SINHA, J. Leave granted.

Interpretation of Section 94 of the Representation of the People Act,
1951 (for short, 'the Act') is in question in this appeal which arises out of
a judgment and order dated 11.03.2005 passed by a learned Single Judge of C
the High Court of Andhra Pradesh.

An election was held in Musheerabad Assembly Constituency on or
about 20.04.2004. For conducting the said election electronic voting machines
were used. Whereas the appellant contested as a candidate of 'Telangana
Rashtra Samiti ', the first respondent contested the said election as a candidate D
of 'Bharatiya Janata Party'. Whereas the appellant herein polled 53553 votes;
the first respondent polled 53313 votes. The first respondent, thus, lost the
election by a margin of 240 votes. An election petition was filed by the first
respondent assailing the said election before the High Court of Andhra
Pradesh at Hyderabad, which was numbered as Election Petition No. 4 of E
2004. In the said election petition, it was inter alia, contended :

"The Petitioner submits that P.S. No. 91 was located adjacent to
the Central Election Office of the Petitioner. As already stated several
of the party workers and sympathizers reside in that area. All those
persons have cast their vote in favour of the Petitioner. To establish F
the fact that the Petitioner could not have polled zero votes in P.S.
No. 91...."

In the said election petition names and identity card numbers of various
persons mentioned in the voter list by way of example were mentioned. One
of the grounds taken in the election petition was misalignment of the machine; G
asserting that whereas both the parties polled nil votes from a particular
booth, the independent candidates polled a high number of votes.

In the said election petition an application was filed by the first
respondent praying for issuance of summons to some witnesses apart from
those whose names had been mentioned in the election petition, inter alia, H
906 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A stating :
"I humbly submit that a list of witnesses that are to be examined
on my behalf was filed on 17.1.2005. However, the names of certain
of the voters in P.S. No. 91 who had agreed to give evidence could
not be included in the said list of witnesses as there was very strong
B likelihood of threat and intimidation. In that view of the matter, a
Memo dated 17.1.2005 was filed into Court humbly craving the leave
of the Hon'ble Court to produce the said witnesses at a later date by
filing an appropriate application. It is respectfully submitted that non-
disclosure of the names of the said witnesses in the list already filed
was only having regard to their safety. I submit that their evidence is
c essential for establishing my case as it is specifically contended by
me in the Election Petition that I could not have secured zero votes
in P.S. No. 91, Polling Station being located in a BJP stronghold and
several BJP workers, sympathizers including the wife, mother, sister-
in-law and other female relatives of my polling agent are listed as
D voters in P.S. No. 91, which is exclusively reserved for female voters."

A memo was also filed before the High Court on 17.01.2005, stating :

"The Petitioner humbly submits that at the time of preparing the
Election Petition certain of the voters in P.S. No.91 had agreed to give
E evidence. The Petitioner has been informed by the aforesaid persons
that they apprehend threat and intimidation. In view of this petitioners
humbly crave leave of this Honourable Court not to disclose their
names in the list of witnesses having regard to their safety and prays
that the Honourable Court permits production of such witnesses
during the trial as per the calendar fixed by this Honourable Court.
F The petitioner undertakes to file the necessary application for
permission to produce the aforesaid witnesses as contemplated under
law and procedure. Hence this Memo."

A contention at the hearing of the said application for issuance of
G summons as to whether having regard to the provision of Section 94 of the
Act, providing for "no witness or other person shall be required to state for
whom he has voted in an election", summons could be issued by the Appellant
before the High Court.

The said contention was rejected by the High Court by reason of the
H impugned judgment.
NAYINI NARASIMHA REDDY>. DR. K. LAXMAN [S.B. SINHA, J.] 907
Mr. Harish Salve, the learned Senior Counsel appearing on behalf of the A
"' appellant, submitted 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 caste his vote. Strong reliance in this behalf
has been placed on S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and
Ors., [ 1980] Supp. SCC 53. B
Mr. L. Nageshwar Rao, the learned Senior Counsel appearing on behalf
of the first respondent, on the other hand, inter alia, contended that the
voters merely enjoy a privilege in terms of Section 94 of the Act; but the same
would not mean that the courts cannot be asked to issue any summons C
therefor. Drawing our attention to the fact that in the application for summoning
some witnesses, it was contended that the same was filed in support of the
grounds taken in the election petition and as such it would not be correct to
contend that the summons on the witnesses were sought to be served only
for the purpose of obtaining disclosures from them as to in whose favour they
had voted in the election. D
Section 94 of the Act reads as under :

"Secrecy of voting not to be infringed.-No witness or other person
shall be required to state for whom he has vot'ed at an election.

Section 94 does not provide for a total embargo on a party to an
E
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 in our opinion may not itself be a ground to refuse issue of summons F
to the witnesses, Section 94 of the Act merely confers a privilege upon a
voter. He may even waive his right. It is not in dispute that any person 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 G
to whether a witness will exercise his right/privilege conferred in terms of
Section 94 of the Act is a matter of volition .

.., . It is one thing to say that the civil court while issuing a summon must
exercise its jurisdiction in terms of sub-rule (2) of Rule I of Order XVI of the H
908 SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A Code of Civil Procedure but it is another thing to say that the court would '-I
refuse to summon the witness only because a question as regard exercise of
the privilege of the witness may arise. 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.

B It is, therefore, necessary to notice the nature and extent of such a right.
Section 94 of the Act merely states that no witness or other person shall be
required to state for whom he has voted at an election. When questioned, Mr.
Salve did not dispute that if a witness is summoned for proving or disproving
one or the other grounds taken in the election petition, or the defence raised
by the elected candidate, summons may be issued and while examining the
c said witness in court, a question may also be put to him as to for whom he
had voted at an election. If such a question is put to him, indisputably, he
may exercise his right not to answer the same. The court shall evidently
inform him about the said right but by reason thereof no conclusion can be
arrived at that the jurisdiction of the court in the matter of issuance of
D summons itself stands abrogated or restricted. 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 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
E 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
our comprehension as to how the right of a party to the /is to summon a
witness can be denied only on the ground that the issuance of summons by
the court itself would be violative of Section 94 of the Act.
F Sub Rule 2 of Rule I of Order XVI of the Code of Civil Procedure
indisputably require the party to file an application for obtaining any summons
for the attendance of any person stating therein the purpose therefor; but the
same would not mean that the court would refuse to exercise its jurisdiction
only because one of the purposes disclosed may be that the witness may be
G asked a question as to in whose favour he had exercised his right of franchise.
The purpose which is required to be disclosed in such an application for ..
summoning a witness is only with a view to apprise the court as to whether
the evidence which may be adduced, would be relevant for the purpose of
determining the issues and not for any other purpose. ..;

H ·-
NAYININARASIMHA REDDYv. DR. K. LAXMAN [S.B. SINHA,J. l 909

It may be true that if a person to whom summons is issued appears in A
the court, the Court may require him to give evidence or produce any document
in his possession or power, as envisaged under Order XVI of the Code of Civil
Procedure; but the same again would not mean that if thereby a mere possibility
exists that the secrecy of voting thereby may be infringed, the summons
would not be issued at all. We, for the aforementioned reasons, do not agree B
with the contention of Mr. Salve.

In S. Raghbir Singh Gill (supra), this Court laid down the law in the
following terms :

"14. The marginal note of Section 94 says "secrecy of voting not to
be infringed'. Section 128 of the Act casts an obligation on every C
officer, 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 D
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) & (8), 40(1) second proviso, 38-A(4), 39-A(I) & (2) and similar E
other rules provide for maintaining secrecy of ballot. It cannot be
gainsaid that various provisions referred to above ensure secrecy of
ballot and even Section 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 F
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 untrammelled by
any constraint which includes constraint as to the disclosure. A
remote or distinct possibility that at some point a voter may under a G
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." H
910 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A A question was posed as to whether Section 94 of the Act creates an
absolute prohibition and it was answered in the following terms:

"rs. It was said that Section 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
B admits of, no exception and enacts an absolute prohibition. 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,
what was the intendment? Emphasis is more easily demonstrated
when statute is negative than when it is affirmative but the question
c is one of intendment (see Mayor ofLondon v. R. 6). 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. Hannan'). And in such a situation
the court must escalate in favour of that construction which carries
D out the intendment behind enactment and accords with reason and
fair play.

I9. 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 his vote, and
E 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 divulge his vote. Which of the two constructions
advances the object of enactment?

20. If Section 94 is interpreted to mean to be a privilege of the
F voter to divulge or not to divulge how he voted and if he chooses
not to divulge, Section 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
G
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.
H •
NA YIN! NARASIMHA REDDY v. DR. K. LAXMAN [P.K. BALASUBRAMANY AN, J.) 911

That guarantees the vital principle behind secrecy of ballot in that the A
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 B
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."

The said decision, therefore, does not support the contention of Mr. C
Salve.

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.
D
This Court in A. Neelalohithadasan Nadar v. George Mascrene and
Ors., [1994] Supp. 2 SCC 619, emphasized on the principle of purity of elections
holding that Section 94 of the Act cannot be pressed into service to suppress
a wrong coming to light and to protect a fraud on the election process.
Therein this Court followed S. Raghbir Singh Gill (supra).
E
For the reasons aforementioned, we are of the opinion that there is no
merit in this appeal, which is dismissed accordingly. No costs.

P.K BALASUBRAMANY AN, J. I. I respectfully agree with the reasoning
and conclusion in the judgment just pronounced by my learned brother.
F
2. Section 94 of the Representation of the People Act, 19 51 (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 G
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
H
912 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A 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,
B 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.
c 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:

D "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 detem1ine 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
E 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.
F 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."
G
[Phipson on Evidence, 15th Edn., page 564]

H
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
.. ..
NAYINI NARASIMHA REDDY>'. DR. K. LAXMAN [P.K. BALASUBRAMANYAN, J. ] 9 JJ

witness, is misconceived. The appellant cannot thrust the privilege under A
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 B
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 Ors., [1980] Supp.
SCC 53 and A. Neelalohithadasan Nadar v. George Mascrene and Ors.,
[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 C
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 D
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.
E
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, I908, on application by the
parties or suo moto to summon any person for his attendance in Court and
F
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. G
8. Hence, I too would dismiss the appeal.

K.K.T. Appeal dismissed.