India has the world's largest democracy and the foundation of democracy is based on free and fair election. Despite the law governing the electoral process, corrupt practices are still rampant during elections. All the democracies worldwide guarantee secrecy as the foundation of the electoral system. The Constitution of India lays down the secrecy of the ballot as the principal element of an impartial and unbiased election thereby ensuring ballot independency. Secrecy of ballot is the foundation of a legitimate democratic election where the choice of the voters should remain anonymous to thwart the endeavors of influencing the voter's preference. It is an initiative to execute the objective of a free and fair election and the aim of political privacy in a representative election. Secret ballots are endorsed in all forms of elections in the nation including the presidential, vice-presidential, Lok Sabha and Rajya Sabha elections as well as state legislative assembly elections. The secret ballot is one of a set of democratic institutions—e.g., freedom of speech, freedom of association (allowing competing political parties), universal suffrage, and due process of law—designed to foster competitive and legitimate democratic elections. The franchise designated to all the voters of the country provides them the right to vote fairly without disclosing the identity of the party or the candidate they have voted in favor of. In the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Others, the court had held that the principle of secrecy is not absolute in law but it is a necessary condition to fulfill the provision of a free and fair election.
The notion of ballot secrecy is intervened by the illicit acts of illegal financing, coercion, purchasing of potential voters, terrorizing, and intimidating the voters that lose the purpose of ballot independency. The privacy of the voters plays a fundamental role in the election that forms the basis of a free and fair election as enshrined by Article 324 of the Constitution of India. Further, the right to privacy of the voters is protected under Article 21 of the Indian Constitution where they can cast their votes without any undue influence or coercion on them. The right to secrecy is a globally acknowledged right that is manifested in international laws Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights. Moreover, Section 94 of the Representation of the People Act, 1951 provided that the confidentiality of the voting should not be infringed in the elections where secret ballot are used as a medium of voting.
Lately, the case of Laxmi Singh and Ors. Vs. Rekha Singh and Ors. promulgated that ballot secrecy forms the foundation and fundament of a free and fair election. The current case dealt with a no-confidence motion was moved against the Respondent-Panchayat Adhyaksha by several elected representatives in the Zila Panchayat, Prayagraj, Uttar Pradesh. The aggrieved party recorded a case in the District Court that several members had violated the procedure of secret ballot. However, the no-confidence motion was permitted by the District Court. The respondent approached the Allahabad High Court and filed an appeal. The HC set aside the meeting approving the motion on the grounds that some of the members violated the rule of secrecy of the ballots. The minutes of the motion was set aside by the HC. Aggrieved by the decision of the High Court, the appellants filed a petition against the decision of the Allahabad High Court before the Supreme Court. The petition contended that the principle of voting is based on the grounds of public policy. The voters should be able to cast their votes in a free and manner without the fear of the disclosure of their votes.
The bench comprising of Justice N V Ramana, Justice Sanjiv Khanna and Justice Krishna Murari stated that secrecy of the 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.
The court held that the Panchayat members should comply with the Uttar Pradesh (Zila Panchayats) (Voting on Motions of Non-Confidence) Rules 1966 and put any specific sign on the ballot paper thereby casting their votes without disclosing their personal information. Further, they were required to fold the ballot paper and put inside the box without infringing the confidentiality of the ballot. The court further ensured that as per Section 94 of the RP Act the voters cannot be compelled to reveal the information about whom they voted in favor. But if the voter themselves divulge the fact about whom they had voted for without any influence being exercised upon them, it does not expose them to any penalty. The sole purpose of the act is to guarantee transparency in the elections. The court held that the waiver of this privilege by the voter is not in the contravention of the act. The precedence of the case Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and Another, was used where the Court had stated that the condition of secrecy to vote is in the better interests of the citizen and it can be waived by no other person except themselves. At last, the court referring to the Section 28(8) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 ordered a re-voting by the way of secret ballot system not late than 2 months from the date of judgment.
The secret ballot system requires that one vote secretly behind a closed room during elections for one's preferred candidate while the open ballot system on the other hand entails voting openly by queuing or otherwise, indicating the candidate of their choice. The open ballot system is biased and paves the path of maleficence such as bribery, vote-selling, coercing the voters, and influencing the decision of the voters. But the secret ballot system closes the path for such malignant and detrimental practices. The confidentiality of casted votes of the voters is not intruded or trespassed. The identification of the own votes is impossible in the systematic elimination of the probability of undoing the votes. The open ballot electoral method is evident and discernible which acts as a potential to subdue and persuade the voters thereby losing the purity of a non-partisan election. It exhausts the desires of the politicians who resort to corrupt practices of buying votes and using money to bribe people to lure them in voting them during elections.
The public will in a constitutional democracy is ascertained by an impartial and autonomous referendum. The level of secrecy in the election depends on the region and the strongest remains the one that makes the vote cast by the voters untraceable. Ballot privacy is a step towards achieving intimidation-free surroundings during the elections. The provision of secret ballot enables the voter to select in private a particular candidate or party to whom the voter desires to be elected and voting for them in an enclosed voting area. It ensures that the privacy and the choice of the voter are not encroached and manipulated thereby affecting their decision. The confidentiality of the voter is ensured by the rectitude of the electoral system. The secret ballot system is an appreciable substitute in contemporary times keeping in view the shortcomings of the open ballot system.
 Conor M. Dowling et al., The voting experience and beliefs about ballot secrecy, Plos One ( Jan. 7,2019), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0209765.  S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and Others, AIR 1980 SC 1362.  Constitutional Importance of NOTA & Right to secrecy while voting, ADR, https://adrindia.org/sites/default/files/FAQ-%20None%20of%20the%20Above%20option%20in%20EVM%20(Right%20to%20Reject).pdf.  Laxmi Singh and Ors. Vs. Rekha Singh and Ors, 2020 SCC OnLine 534 (SC).  Ninisha Agrawal, Free and Fair Elections is an essence of Constitutional Democracy, Lawsisto ( Jun. 24, 2020), https://lawsisto.com/legalnewsread/NjAzMg==/Free-and-Fair-Elections-is-an-essence-of-Constitutional-Democracy.  Laxmi Singh and Ors. Vs. Rekha Singh and Ors, 2020 SCC OnLine 534 (SC).  Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and Another, (2014) 5 SCC 312  Joshuad, Why Secret Ballot System Is Better than Open Ballot System, Soapboxie (Apr. 8,2017), https://soapboxie.com/world-politics/Why-Secret-Ballot-System-Is-Better-than-Open-Ballot-System.
SWATI PRAGYAN SAHOO
Student at -TAMIL NADU NATIONAL LAW UNIVERSITY