Holding

Inspection of marked electoral rolls and counter‑foils may be ordered only when strict conditions are satisfied, which were not met in this case, so the High Court order was set aside.

Summary

In the Metropolitan Council election from the Narela constituency, Hari Ram was declared elected with 12,369 votes, defeating Hira Singh who secured 12,131 votes. Hira Singh filed an election petition and, at the interlocutory stage, sought an order directing the Returning Officer to produce the marked electoral rolls and counter‑foils for inspection. The Delhi High Court granted the application, relying on Section 165 of the Indian Evidence Act. On appeal, the Supreme Court held that the High Court erred by not first ascertaining whether a proper foundation and specific material facts were placed before it, as required by Rule 93 of the Conduct of Election Rules, 1961 and the sanctity of ballot secrecy under the Representation of People Act. The Court emphasized that inspection of ballot papers and related documents is permissible only in rare, clearly justified circumstances and rejected the vague allegations of dead‑person voting. Consequently, the Supreme Court set aside the High Court order and dismissed the request for inspection, allowing the appeal.

Issues considered

Whether a court may, at the interlocutory stage of an election petition, order production of marked electoral rolls and counter‑foils for inspection.
Whether Section 165 of the Indian Evidence Act can be invoked to compel such production despite the special provisions of the Representation of People Act and Conduct of Election Rules.
Whether the respondent had laid a proper foundation and specific material facts to justify inspection without violating the secrecy and sacrosanct nature of the ballot.

Legislation cited

Conduct of Election Rules, 1961s. Rule 93
Indian Evidence Act, 1872s. 165
Representation of People Act, 1951s. 152

Subjects

election lawballot secrecyinspection of electoral rollsinterlocutory orderRepresentation of People ActConduct of Election Ruleselection petition

Judgment

..
932

HARi RAM
A
v.
HIRA SINGH & ORS.

November 25, 1983

[S. MURTAZA.fAZAL,ALl, 0. CHINNAPPA REDDY.
AND ~.S. VERNKATARAMIAH, JJ.)

Election LaW-secrecy and Sacrosanc; nature and mainten~n~es. thereof-:-
c ln an election petition, whether a court, on an. interlocutory application pass an
order directing the Returnin_g Offeer to prodUce the rnarked electotal ·Rolls, for
ln&pection and.allow the election Petitioner 10· inspect the counterfoils-Condur{
of EleCfion_ RUies, 1961 1 Rule" 93 read with Section 165 pf J_he Evide1ice·Act. .

In. the election held for the Metropolitan ·Council -from the NareJ.a
Constitucpcy, 'th• appel1ant Hari Ram secured -12,369 votes· afld· was
D declared elected.' The respondent Hira Singh who secured 12,131 vofes filed
an· eICction petition ·bef~re the Delhi High Court ~aking a nUmber of nllega·
tion's against the aJ)pe1lailt. He preferred &D_ interl~cutory application praying.
for ii directirin to the Returning Officer. to J'roduce. the. marked· eiectoral rolls.
for inspection and afso .for allow.ing inspection of the . cbunte_r-foi!S; The-High ·
.Court granted bot~ the pra:Yers· and hen._ce this app~a1.
E Allowing thi;: apPeat, the Court·.

HELD:· t.1 Befote allowing the prayers. ~t an interlocutQry stage, the
High Court must e;a1nine whether proper foundation Was laid for inspection
··and sufficient materials placed before it alld pass an ord€r Which would result
..
. ·in adVefsely affecting the secrecy an·d ·sacrosanct natui'e Of thC electoraf
·.~
F .Process. Inspection Of ballot paper's a·nd c~u~1tcrfoi1s should b~ allowed very
·-·sparingly and only when it is 3bsolute1y essenti~l to determine. the' issue. In
the, garb of seeking inspection, the defe8.te~ .can.didate should not _be allowed

...
. · ...
to inake a· roving inquiry in ·order t~- fish out materials to set aside the election.·

-•· ~~
.

·. Bhabhi v. Shea· Govl~d and Ors., (1975] Supl.J SCR 202, followed, •

1.2 The ~pproach of the Hlgti Couft,. in the. ins,tarit case, at the very
outset was legally incorrect. It wa·s ·.under a wrong impression that it· had
ample powers to ditect production of any document under Section 165 of_ the
· Indian Evidence Act and over-looked the· fact that_ the Representation of . .,.
People Act was a special Act and provisions of the Evidence Act or the Code ....J
H
..
of Civil Procedure woutd:only apply wh_ere t11ey-are not ex.eluded. [93s·n~EJ

2.1 A perusal pf Rule 93 of the Conduct. of. Election ·Rules; 1961
__.

clearly shows ihat the Lca;islature intended to.make a clear distincdon between
HARi RAM v. HIRA SINGH (Faza/ Ali, J.) 933

one set of do"cuments and another. ·so far as tl}e ~ounterfoils arid .the marked .
copy of the electoral rolls were cdncerned, there was a strict prohibition for A
opening these doCumertts~unless the cOu~t was fully_ satisfied. that a cost iron
caSe was tntde oµt for the same; whereas documents mentiQ~ed in clauses "(a)·
and (b) of Sub Rule (2) of Rule 93 (as amended) eould be liberally allowed to
be inspected. [937 D·El · · ·

' Ram Sewak Yadav v. Huisain Ka111il .Kidwai & 01'S., [196416 SCR 238;
applied. B
. ,.
2.2 In the .instant case, the attempt of the respondent petitioner for.
inSpecting ·"marked electoral role hy making vague allegations was nothing but
to fiah out material for challenging the election of the appellant and it -clearly •
·violated the sanctity ·and secrecy-of the electo_ra1 process. (9~7 _G]
c·
CIVIL APPELLATE.JURISDICTION : Civil· Appeal No•.· 10062 &
.10063 oi.1983. •
Appeals by Special leave from the J udmeut a11d Order dated
the 8th September & 19t.h September, 1983 of the De.lhi High Court
in Election Petition No. 2/83. · · D
F. s._ Nariman, S. P. Pandey and· N. N. Agarwal for the ·
Appellant.
S. N. MarMa and K. C. Dua for th~ Respondent,·
. The Judgpient of the Court was delivered by .E

FAZAL Air. J. By ~n .Order dated 15th N;vember, i983 we had
allowed the appeal of the appellant and set aside the order of the
High Court witho.ut making any order as to costs. this election
l!ipeal arises out of' an interlocutory by order passed by the Delhi
· High Court on an application given by the respondent for directing
F
. ihe Returning Officer to produce the marked· electoral rolls for inspec·
· tion. The C9urt also granted further ~rayei of the respondent for
allowing .inspection of the counterfoils. The High Court granted both
the prayers and ·hence this appeal. · ·
. G
The appeal arises out of the election held for the Metropolitan
Council. from the Narela Constituency. As a. result o_f the ·poll the .
. appellant Hari Ram secured 12369 votes and Hira Singh (respondent)·
12131 votes, Thus the appellant was declared elected. The respon-
dent-petitioner had made a .number of allegations against the· appel· H
!ant but in .the present appeal we . are. only concerned with the
interlocutory prayer made by. the respondent for inspection of
niarked electoral rolls and tb,e coun\erfoi!s, · ·
. • \
93~ SUPREME COURT REPORTS (1984) 1 s.c.R.

In support of the appeal, Mr. Nariman submitted that the
A High Court gravely erred in allowing the prayers at the interlocu-
tory stage without examining whether proper foundation .was laid for
inspection and sufficient meterial placed before !he Court in order
io allow the prayer which would result 'in adversly affecting th•
secrecy and sacrosanct nature of the electoral process. In our opinion, t.
B the contention of the appellant is well founded and must prevail.

It is now well settled by a long course of decisions of this
Court.that inspection of ballot papers and .conterfoils should be
• allowed very·sparingly and only when it is absolutely ·essential t~
determine the issue. This Court has further laid down that in the
G garb of seeking inspection the defeated candidate should not be
allowed to make a roving inquiry in order to fish out' materials to set -f ·.
aside the election. In the case of Bhabhi v. 'Sheo Govind & Ors,( 1) this
.
Court clearly observed thus:-·

"Thus on a close and careful consideration o( the·
D various authorities of this Court from time to· time it is·
manifest that the following conditions are imperaiive
· before a Court can grant inspection, orcfor·that matter
sample inspection, of the ballot papers :

E (!) That it 'is important to maintain the secrecy of the
ballot which is sacrosanct and should not be allowed
to be violated on frivolous, vague and indefinite
allegations:

(2) That before inspection is allowed the allegations
F made against the elected• candidate must. ~ clear
and · specific and. must be supported by adequate
statements of material facts; ·•

...•
G
(5) That the discretion conferred on the Court should
not lie exercised in such a way so as to enable tho
. applicant to indulge in a roving inquiry wiili a view
to fish (out) materials fo; declaring the election to be
H voidJ and '-
I
(I}ll [19751 Suppl. s.c.R. 202.
•

HARi RAM v. HJRA 'SIN OH (Faz a/ Ali, J.) . 935

(6) That on. the special facts of a given. case sample
inspection may be ordered. to lend further ·assurance A
to the prima facie satisfaction of the Court regarding
the truth of the allegations made for. a •recount, and
not for, the purpose of ~shing ·out .materials." ·
,,
After going through the judgment of the High Court and the B
application of the respondent-petitioner for · inspection of the ·
documents concerned, we are satisfied that n_o case for inspection •

•
was at all made out and the the High Court erred in allowing the
prayers of the respondent and acted against the settled ·principles as
extracted above.
c
To begin with, the High Court seems to have been under .the
impression that the Court had ample powers to 'direct production of .·
any document under section 165 of the . Indian Evidence Act. In
doing so with due'deference, the. High ·Court overlooked that the
Representation of People Act was a special Act and provisions of D
the Evidence Act or the Code of .Civil . Procedure would only apply
where they "are not excluded.-. Thus, at the· very outset, with dne
'· respect, the approach of the High Court was legally incorrect. Fur-
thermore, in the case of Ram Sewak Yadav v. Hussain Kami/ Kidwai
& Ors.(1 ) this Court "'.liile interpreting the provisions of Rule 93 of •
the Conduct of Election Rules, 1961.framed under the Act, made the E
following observations:~ ·

By rule 93 of the Conduct of Election Rules, 1961, it is
provided that:
F
"(l) While in the custody of the returning officer- ·

(a) the packets of unuaed ballot papers;

(b) the packets of used ballot papers whether valid,
• • tendered or rejected! G
. ..
(c) the packets of the marked copy of the .electoral
roll or, as the case ·may be, the lot maintiined
under. sub-section ( 1) or sub-section (2) of •
·~·
section 152.J and . · B
· (I) [1964]6 S.C.R. 238; e
•
93~ SUPREME COURT REPORTS. j!984J l S.C.R.

(d) the packets of the declarations by electors and
A · the atte~tation of their signatures;

shal.I not· be opened and their. contents shl!II not
be inspected by, or produced before, any person
. or authority except under the order or a compe '.
B tent court or tribunal.
. . .
·(2) All other papers relating to tli:e election shall be
open to public inspection subject .to s.uch conditions ..
arid to the payment of such fee, if any, as the
Election Commission may direct.

· (3) Copie_s _of the returns by the returning officer for·
warded under.rule 64.or a8'the case ·may be under
sub-rule (3) of rule 84 shall be furniShed by the chief '
. elector~! officer of the State concerned on payment .of
a fee of two. r)Jpeesfor·each such copy.

The rule makes a clear distinction between ballot
papers and other election papers; ballot papers may .be..
inspected_ only under the order of a competent cou.rt or'

• E . tribunal, but other documents are, subject to certain
~ conditions, open to public inspection."

The Court further observed :

a
"The Returning Officer i.s not party. to an election
F petition; and an order for pro<luction. of the ballot
papers cannot be · made under 0.11 Code of Civil
Procedure. But . the Election Tribunal is not cin 1hat .
. account without authority. in respect of the. ballot
papers. in a proper case_ where the mterests of justice
demand it,. the Tribunal may call upon the Returning
G . Officer to produee the ballot pape~s and. may permit ins-
,. pection by the parties before it of the ballot papers ...
•

Ari order for inspection may not be granted as a
• H matter of course: havfog regard to the insistence upon
t.he seyrecy of ihe. baUot papers, Court would be i.ustified
in granting· an order· for inspection provided two con-
ditions are fulfilled;· . · · ·
•
.HARi RAM v. HIRA SINGH (Fazal Ali, J.) 937

(i) that the petition for setting;aside an election contains 1
an adequate statement of the materiel facts on which , A.
the petitioner relies in suppporfofhis case; and

(ii) the Tribunal is prima. facie satisfied that in order to
decide the dispute and to. do complete justice between
the P.arties inspection 'of the .ballot papers is neces-
- J sary.·
An order for inspection of ballot papers cannot.
be granted to support vague pleas made in the petition ·
not supported by material facts or to fish out evidence to'·
support such :Pleas. The case of the petitioner must 'be·
set out with precision supported by averments of material
c
facts."·
A perusal of this rule clearly shows that the Legislature in-
tended to make a clear distinction between one set _<>f doGurnent,
·and .another. S~ far as the counterfoils and the. market copy of . the . })
electoral rolls were concerned, there was a strict probibiiion for
opening these documents unless the Court wa; frilly satisfied that a
cast-iron case was made out for the same; whereas documents inen-
. tioned in. cla11ses (a) & (b) of.sub'rule 2 · of Rule 93 (as aincnded)
could be liberally allowed to be inspe~ted. ·
E
We are afraid that'!he High Court' has not kept these principles
\ in view while. allowing the prayers of ·the· respondent. The
main ground put forward by ·.'the respondent was. that ·there
were a· number ·of dead .persons · for ·whom also voies were cast.
.. Despite this allegation no details and particulars were given nor
was .it even mentioned whether the Polling Agent of the ·respondent F
had ·made any note of the fact tbat votc;s were actually cast for dead
·persons and the number of these votes: The allegations made by
. the respondent-petitioner in .his application for inspection are fright•
fully vagne. There is no allegation as to whether any vote was cast .
for the dead persons and this is what the rnspondent sought to· find .
out by inspecting the marked electoral rolls. It is manifest that. G
this attempt of the responent was nothing ·but to. fish out ·the
material for challenging the election of the app~llaut and.· it clearly ...
vjolated the sanctity· and secrecy of the electoral pr_ocess. Thus, the
.r High Conrt was clearly wrong in allowing such prayers for ins-
pection. As· far a:s the inspection of co.unterfoi!s, was concerned, even H
ihe .rewondent did not press for the same realising t'hat he had not. :·
lllade
. .
~ut any. strong case for such a1{action
- - . .
938 SUPREME. COURT REPORTS (1984] I s.c.R.

For' tbe reasons- given
'. above, we, therefore,
. . allow the appeal
A and set aside the order of the High Court dated l?th September,
1983 and reject the. prayers for inspection. of marked rolls and
counterfoils. There will be no order as to costs.

S.R. Ap~a/ allowed
,

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