Sarpanch/Upa-Sarpanch Election Must Be Conducted Via Secret Ballot Instead Of Show Of Hands If Even One Panchayat Member Demands: Bombay High Court

The Bombay High Court recently held that the election of Sarpanch/Upa-Sarpanch must be conducted by secret ballot even if just one panchayat member present at the meeting requests election through secret ballot election instead of show of hands.

Justice Kishore C Sant of the Aurangabad Bench held that the method of conducting election cannot be decided by the majority opinion.

“It is, therefore, provided necessary that even if one person asks for secret ballot instead of voting by show of hands, it needs to be held in that way. Whether to hold election by secret ballot or show of hands cannot be let to the will of the majority. The Presiding Officer in this case decided to take voting by show of hands by recording that the majority of the voters demanded voting by show of hands and has committed the error”, the court held.

The court upheld orders setting aside the Upa Sarpanch election of a village conducted by show of hands despite a panchayat member’s request for a secret ballot.

The dispute originated from an election held in January 2021 for the post of 11 members of the Grampanchyat in Village Pangri, District Jalna. The post of Sarpanch was reserved for persons belonging to Scheduled Castes. During the election for Sarpanch and Upa-Sarpanch, respondent Rajendra Pawar, a panchayat member, filed an application demanding voting by secret ballot. The Presiding Officer rejected the application, and the election proceeded with a show of hands. Petitioner Aarti Pawar was elected as the Upa-Sarpanch.

A dispute was filed contesting the election process. The Collector held that the petitioner’s election to the post of Upa-Sarpanch was illegal and set it aside. The Additional Divisional Commissioner dismissed the petitioner’s appeal. Thus, she filed the present writ petition.

The petitioner argued that the application for secret ballot was for the post of Sarpanch, not the Upa-Sarpanch. Since only one nomination was received for the post of Sarpanch, there was no requirement for voting for that position. The rejection of the application, according to the petitioner, was solely for the post of Sarpanch and not the Upa-Sarpanch.

The minutes of meeting revealed that the respondent’s application was considered, but the Sarpanch, Parmeshwar Mankar, demanded voting by raising hands. The Presiding Officer decided to have the voting by show of hands, since there was majority by all the members demanding voting by raising hands.

Rule 10(2) of the Bombay Village Panchyats (Election to Sarpanch and Upa-Sarpanch) Rules, 1964, provides for election by secret ballot if demanded by any member present at the meeting.

The court noted that the application for secret ballot was submitted after it had already become clear that there is only one nomination for Sarpanch and hence no election for Sarpanch would be conducted. Thus, the respondent’s application for secret ballot pertained to election of Upa-Sarpanch, the court held.

The court held that when any member present at the meeting demands voting by secret ballot, it is mandatory for the Presiding Officer to hold the election by secret ballot. The court concluded that the rejection of the application for a secret ballot violated Rule 10(2).

The court underscored the importance of upholding democratic principles and protecting the secrecy of the voting process to prevent any undue influence or pressure on the voters.

“The secrecy in the voting process gives every member an assurance that his vote will be a secret and he can vote freely without any pressure. The very purpose of maintaining secrecy is to avoid a member facing pressure of mighty persons. If every member is to give vote openly, he may feel a pressure while voting against mighty persons”, the court observed.

The court dismissed the technical objection raised by the petitioner regarding the pursis filed by the respondent to withdraw the dispute, emphasizing the broader interest of ensuring transparency and legality in the election process for the entire village.

“When the question about legality of proceeding is raised and illegality is pointed out to the Collector, it is necessary for the Collector to decide the dispute, as the question is not of individual right but is of entire village. It is necessary to strengthen the belief is the democratic process”, said the court.

The court dismissed the petition, upholding the orders passed by the Collector and the Additional Divisional Commissioner-1, Aurangabad. However, the interim relief for the petitioner was continued for a period of three weeks.

Case no. – Writ Petition No. 14612 of 2021

Case Title – Aarti w/o Santosh Pawar v. State of Maharashtra and Ors.