Election Petition No. 5 of 1948 on the file of the Court of Small Causes, Madras, was filed by Mrs. Sakuntala Bai, the first respondent to this petition against three persons two of whom had been declared as the successful candidates in the election to the Corporation of Madras from the 40th division (Chepauk) held on 30th September, 1948. The third respondent to her petition is the Commissioner, Corporation of Madras. In her petition for setting aside the election, the first respondent herein alleged several instances of irregularities in the conduct of the election as well as false personations and misrepresentations practised by the candidates. It was alleged that there was false personation of voters on a large scale and quite a large number of false votes were recorded in favour of the successful candidates. It was further alleged that many dead persons were “resuscitated” and voters who had left the division long before were impersonated and their votes recorded. The successful candidates filed written statements denying these allegations and the enquiry is now pending before the Chief Judge of the Court of Small Causes, Madras. M.P No. 9782 of 1948 in Election Petition No. 5 of 1948 was filed on the 20th December, 1948 praying that the Commissioner of the Corporation of Madras may be directed to produce and deposit the documents mentioned therein in the Court and the first respondent herein may be granted leave to inspect the documents. The documents mentioned in the petition are ten in number beginning with “the marked copy of electoral rolls used by the Polling Officers at the four booths in the 40th division, Chepauk on the day of election” and ending with “the statement of votes secured with particulars of invalid and duplicate votes polled for each candidate prepared at the counting of votes by the Commissioner of the Corporation of Madras.” Among these are to be found: counted ballot papers; tendered ballot papers; unused ballot papers; spoilt ballot papers; counterfoils of ballot papers; etc.

On this application the learned Chief Judge of the Court of Small Causes gave notice only to the Commissioner of the Corporation of Madras and passed the order which is now sought to be revised by the petitioner, one of the successful candidates.

It is common ground that no notice of M.P No. 9782 of 1948 was given to the two contesting respondents before the lower Court but the only party that was represented before the learned Chief Judge was the Commissioner of the Corporation of Madras. The learned Judge ordered that the inspection of the documents mentioned in the application should be given at the Corporation Office by some responsible officer of the Corporation by breaking open the seals after previous notice to the parties and in their presence and after the inspection is over the packets should be re-sealed in the presence of the parties. It was further directed that if the inspection lasted for more than a day, the packets should be re-sealed at the close of each day and be broken open on the next day in the presence of the parties and the inspection conducted as aforesaid. The re-sealing was to be done by the officer who opens the packets. It is noteworthy that the first respondent's prayer was that the documents mentioned in her application should be produced and deposited in the lower Court and that she might be granted leave to inspect the same thereafter; but the learned Judge, so I am informed, found it inconvenient to keep the custody of the ballot papers and other documents and therefore after getting the consent of the Counsel for the Commissioner of the Corporation directed the inspection in the office of the Commissioner itself. It is this order giving an opportunity to the defeated candidate to have what Mr. Rangaramanujam for the petitioner characterises as “a roving enquiry” in order to fish out information” that is now sough t to be set aside on the ground of irregularity in the exercise of jurisdiction by the lower Court.

Among the rules prescribed for the adjudication by the Court of Small Causes of disputes arising out of elections or Councillors or Aldermen of the Corporation of Madras, Rule No. 6 is to the effect that every election shall be enquired into by the Court (Small Cause Court) as nearly as may be, in accordance with the procedure applicable to the trial of suits in the Presidency Court of Small Causes, Madras (see page 136 of the Madras Corporation Code, Vol. I). O. 11, Rr. 1 and 2 of the Small Cause Rules provide for inspection of documents, just as O. 11 provides for inspection of documents under the Civil Procedure Code. Ordinarily, in the trial of a suit if a party seeks inspection of documents in the possession or custody of the other party in an application to the Court filed for that purpose, whether supported by an affidavit or otherwise, notice has to be issued to the opposite party before such inspection is ordered. In this case there is no dispute whatever that no such notice was ordered. How far the order of the learned Chief Judge passed in the absence of notice to the contesting respondents, though they are not in possession of the documents of which inspection is sought, is in the exercise of jurisdiction, is the question that has got to be considered.

Secrecy of ballot is one of the chief features connected with an election in any democratic country and if democracy is to function properly it is of the very essence that the choice made by a voter regarding a particular candidate should not be made known to the public generally. That is the reason why elaborate precautions are taken and rules promulgated enjoining secrecy of ballot for the election of councillors for the Corporation of Madras as well. R. 21 of the Rules for election of divisional councillors of Corporation of Madras and of councillors to fill seats specially reserved for labour, provides the procedure to be followed when an elector wants to vote. Rr. 36 and 37 of the said Rules provide for the safe custody of the sealed packets containing tendered ballot papers, marked copy of the electoral roll or the counter foils of the ballot papers. R. 37 dealing with disposal of ballot papers lays down that the Commissioner after declaring the results, shall retain in his custody the packets of ballot papers, whether counted, rejected or tendered, and of the counterfoils thereof. These packets shall not be opened and their contents shall not be inspected or produced except under the orders of an election or other competent Court. These safeguards show that the ballot papers and other records relating to the election should be kept in safe custody and should not be made available to the candidates or the public even after the election is over and the successful candidates declared.

In Ramakrishna Reddi v. Nooney Panakalu (1) Jackson, J., held that the power of ordering inspection of the ballot papers should be exercised by the Election Court with the greatest circumspection; and if it is necessary to find out the ballot papers, the search must be conducted by the Judge himself or by the subordinates in whose impartiality he has complete confidence. The parties themselves should never have access to the general contents of the ballot box. As I have already stated, it is of the very essence of any proper election in a democratically governed country that the mode in which a particular elector has voted shall not be discovered until he has been proved to have voted and his vote has been declared by a competent Court to be invalid. The examination of the ballot papers must follow the proof and not precede it.

In Rogers on Elections, Volume II, 20th Edition, which is one of the leading authorities regarding elections in Great Britain, we find at page 110 the following passage:

“After the documents have been deposited with the Clerk of the Crown, no person is to be allowed to inspect any rejected ballot papers except under the order of the House of Commons, or a superior Court of a Judge at Chambers which is to be granted by such Court or Judge on being satisfied by evidence on oath that inspection or production is required for the purpose of a prosecution or petition”

Therefore what is necessary before the inspection of ballot papers is ordered, is the satisfaction of the Court by evidence on oath, that such inspection or production is required for the petition. A strong case is required to justify an order for the production of ballot papers or counterfoils ordinarily. It is also stated at page 111 of the same book that with the exception of the rejected ballot papers, the counted ballot papers and the counterfoils, all the documents forwarded by the returning officer to the clerk of the Crown are to be open for public inspection, and copies of them or extracts therefrom may be taken. In the City of Madras, in respect of Corporation elections, the functionary who resembles the Clerk of the Crown in parliamentary elections is the Commissioner of the Corporation and it is his duty to seal up and keep the papers relating to the elections in safe custody and as I have already remarked R. 37 lays down his duties. It also states when and under what conditions the sealed packets shall be opened.

Though at the hearing of this petition, no English case laying down the principles to be observed before inspection of documents relating to an election has to be ordered was brought to my notice, I find from the authorities cited in Rogers on Elections, the decision in Stowe v. Jelliffe which affords a useful and safe guidance. In that case Brett, J. laid down that the practice of granting inspection of documents under the English Ballot Act should be regulated by the same rules which guide the Courts in granting inspection in ordinary cases, proper precautions being taken not to violate the secrecy of voting which was the object of the Act to ensure. At page 456, Grove, J. observes as follows:

“Rule 40 gives power to the Court or to a Judge at Chambers to allow the inspection of the rejected ballot papers, ‘on being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose’, amongst other things, ‘of a petition questioning an election or return’. That rule, therefore, seems to contemplate a power to the Court or a Judge at Chambers which the election Judge does not possess. It seems to me that that power may fairly be contended to extend to any document, public or private. I therefore think the order for production and inspection of the marked register may go, though not without some doubt.

But as to the rejected ballot papers and the counterfoils, I think no case is made out for an order for their production. The application is not confined to any particular ballot papers, but inspection of all the rejected ballot papers is asked for. Is this Court, in every case, to grant inspection as a matter of course upon the mere production of an affidavit of the agent that in his judgment and belief such inspection is necessary to enable him to prepare the petitioner's case? If that had been the intention of the legislature, it might have been expressed in a few lines: I do not think these long provisions would have been necessary; particularly as there is a provision elsewhere showing how these may be seen and copies obtained”

Further on the learned Judge observed:

“The whole scope of these provisions is that no person, not even the clerk of the Crown, shall see the contents of these sealed packets without the order of the House or of the Court.”

Again at page 458 we find the following passage:

“That shows the elaborate care taken to prevent an undue exposure of the way in which any voter has voted: and all this would have been unnecessary if inspection could be had for the mere asking.”

Later on he observes:

“I do not say that the Court hat not power under any circumstances to allow inspection of the rejected ballot papers and the counterfoils of ballot papers; but I think, before such inspection is allowed, a very strong prima facie case should be made out.”

At page 459, Denman, J. observes:

“It is not enough that inspection is asked for; the Court must be satisfied by evidence on oath that it is reasonably and bona fide required for that purpose.”

In view of the above observations, which in my opinion should be followed by Courts hearing election petitions in this country as well, the question whether the learned Chief Judge of the Court of Small Causes was justified in ordering inspection without notice to the other respondents who were the successful candidates and before giving a finding that a prima facie case has been made out for such inspection, has to be decided. I am of opinion that in a case of this kind the maxim audi alteram partem has to be applied. No order should have been passed without hearing the opposite side.

I do not wish to say anything on the merits of the application to the lower Court in view of the course I am taking of remanding the application to the learned Chief Judge of the Court of Small Causes for fresh disposal after giving notice to the other two respondents and hearing the objections, if any of the successful candidates who were respondents 1 and 2 before him.

The civil revision petition is therefore allowed. The order of the learned Chief Judge is set aside and he is directed to restore M.P No. 9782 of 1948 to his file and dispose of it according to law in the light of the observations contained in this judgment. There will be no order as to costs in this civil revision petition.

N.R.R