19 June, 2020
Section 28(8) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, Section 94 of the RP Act Section 28(8) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, Section 94 of the RP Act
Sixty-four out of the ninety-two elected members of the Zila Panchayat, Prayagraj, Uttar Pradesh had on 1st October 2018 moved a motion of no confidence against the Panchayat Adhyaksha, Ms. Rekha Singh, the first respondent before us.The District Judge, Allahabad had thereupon nominated the Signature Not Verified Additional District Judge, Allahabad to act as the Presiding Officer Digitally signed by DEEPAK SINGH Date: 2020.06.19 15:30:26 IST Reason: In the meeting of the Zila Panchayat summoned to consider the Motion. In the meeting of the Zila Panchyat held on 25 th October 2018,forty-eight out of fifty-one members present had voted in favour of the Motion,two members had voted against the Motion and one vote was rejected as invalid.On the same day itself, the Presiding Officer had declared that the Motion was passed by majority of more than half of the total elected members of the Zila Panchayat. On challenge by the first respondent, the High Court of Judicature at Allahabad, vide the impugned judgment dated 13 th March 2019, has set aside the minutes of the Zila Panchayat meeting dated 25th October 2018 approving the Motion, on the ground that some of the members had violated the rule of secrecy of ballot. Reliance was placed on the CCTV footage that was played in the Court, to observe that some of the members had displayed the ballot papers or by their conduct revealed the manner in which they had voted. Section 28(8) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 states that a motion of no confidence shall be put to vote in the prescribed manner by secret ballot. Rule 4 of the Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules 1966 casts a duty and obligation on the Presiding Officer to cause such arrangements to be made as would ensure secrecy of the ballot. Our attention was also drawn to sub-rule (2) of Rule 7 of the 1966 Rules, which requires the members to put a specified mark on the ballot paper to indicate their choice without disclosing their names and proscribes any signature or any other mark by which the secrecy of the ballot may be infringed. Further, we may also note sub-rule (3) of Rule 7 of the 1966 Rules, which requires members to fold their ballot paper to conceal the mark made by them and to put the same in the ballot box. The High Court held in the impugned judgment that there was a violation of Rules 4 and 7 of 1966 Rules, and further held that disclosure of vote during the non-confidence motion was in violation of the statutory scheme governing the same in the State and would affect the purity of elections. The High Court therefore set aside the minutes of the non-confidence motion passed on 25th October 2018. The Petitioners claimed that the principle of secrecy of ballot is based on public policy aimed at ensuring that the voter cast their vote without fear or favour and without any apprehension of disclosure. Elucidating the importance of the provision, secrecy of ballot was appropriately styled as a postulate and keystone in the arch of constitutional democracy as the electorate or the voter should be absolutely free in exercise of franchise untrammelled by any constraints, including a constraint as to disclosure. Even a remote or distinct possibility that at some point, a voter under compulsion of law can be force to disclose for whom she has voted would act as a positive constraint and a check on the freedom to exercise of franchise. Section 94 of the RP Act enacts a privilege in favour of the voter in that no one can compel him to disclose for whom she had voted but the privilege ends when the voter decides to waive the privilege and instead volunteers to disclose as to whom she had voted. No one can prevent a voter form doing so nor can a complaint be entertained from any, including the person who wants to keep the voter’s mouth sealed as to why she disclosed for whom she voted. Once the voter chooses to waive the privilege and volunteers to disclose, there is no contravention of section 94 or any other provision of the RP Act. There is no illegality involved in disclosure by the voter. The Petitioners submitted that the High Court, notwithstanding the aforesaid dictum, has wrongly held that the voluntary waiver principle could not apply to the case in hand with respect to the members of the Zila Panchayat voting on a no confidence motion. Whether such a proposition is correct or not would have to be tested in an appropriate case, and we desist form making any observations on the same as the question of law itself was not fully argued before us. However, the Petitioners submitted that certain principles ought to be highlighted regarding this important question.
We directed learned senior counsel for the first respondent to obtain instructions regarding the same, for which the case was adjourned. It was stated on the next date of hearing, that the suggestion was acceptable on a fresh motion of no confidence being moved. The Petitioners objected to the necessity to file afresh motion, as this would imply that the Motion dated 1 st October 2018,which was put to vote on 25th October 2018, would have to be treated as rejected notwithstanding that forty-eight members out of fifty-one members present, that is, almost 95% of the members present had voted in support of the Motion. At the same time, counsel for the first respondent had asserted that the first respondent enjoys support of the Zila Panchayat and is, therefore,confident that any motion of no confidence moved would be defeated.In the light of the above, we feel that ends of justice will be met if the Motion dated 1st October 2018 is put to revote at a meeting of the Zila Panchayat by way of secret ballot with the District Judge, Allahabad himself or his nominee Additional District Judge, Allahabad, acting as the Presiding Officer on a date and time to be fixed by the District Judge, which shall not be later than two months from today. This would, in our opinion, be a just and fair direction in the factual matrix of the present case given the respective contentions and stand of the parties.
The appeals are accordingly disposed of in the above terms, leaving the question of law open. No order as to costs.
Civil Appellate Jurisdiction
Section 28 of the Customs Act, 1962