1. All these applications under Article 226 of the Constitution raise a common question of law as to the validity of certain rules made by the Government under the Madras Village Panchayats Act, 1950, and published in the Fort St. George Gazette dated nth September 1952 in so far as they provided for open voting at elections to certain Panchayats.
2. The Madras Village Panchayats Act provides for the constitution for each village in the State of Madras a, Panchayat (Section 4(1)). Ths Panchayats are classified into two classes called class I and Class II. Panchayats with jurisdiction over a population estimated at not less than five thousand and with an estimated annual income of not less than ten thousand rupees come under Class I. The other panchayats fall within class II (Section 5(1)(a) and (b)). The power of classification is with the Government, who may from time to time alter the classification of any panchayat. Any decision made by the Government regarding classification cannot be questioned in any court of law (Section 5(3)).
Section 7 provides: "The members of the Panchayat shall be elected in such manner as may be prescribed." For the purpose of electing members to a panchayat, the village is divided into wards., a class I panchayat village into not less than live wards and a class II panchayat village into two wards if it has a population of 1000 or less, and if it has a population of more than 1000 into not more than five wards (Section 9).
Under Section 71 (1), the Government is bound to set apart every year a sum not being less than twelve and a half per cent, of the total land revenue (including water cess) collected in the State during that year and distribute such sum in the prescribed manner as grants to class II panchayats on the basis of their population. One of the items of expenditure from a panchayat fund is the election expenses including the cost of the preparation and revision of the electoral roll, the conduct of elections to the panchayat, and the maintenance of the election establishment. The cost of maintenance of election establishment shall include the pay, pension and leave allowance, if any, of the officers and servants of the Government or of any other authority, employed in the preparation and revision of the electoral roll and in the conduct of the elections.
Section 112 confers on the Government power to make rules generally to carry out the purposes of the Act and in particular as to all matters relating to electoral rolls or elections, not expressly provided for In the Act. In exercise of the powers conferred by Sections 7, 10(3) and 112(2)(1) of the Act, the Government made rules for the conduct of elections of members to panchayats, and they were published in the Port St. George Gazette dated 6th August 1951.
3. The only material rule with which we are concerned is Rule 1(2) which says: "The election of members shall be by secret ballot." In exercise of the same power, the Government made certain amendments to these rules relating to the conduct of elections by G. O. Ms. No. 1799 L. A. dated 8th September 1952 published in the Port St. George Gazette dated September 17, 1952. The rules are divided into two parts, part I and Part II. The rules in part I apply to all class I panchayats and to such other panchayats as may be notified in this behalf by the election authority.
The rule providing for the election or members by secret ballot is made applicable only to such panchayats. The rules contained in part II apply to all panchayats not governed by the rules in part I. These rules provide for open voting. Rule 9 runs thus:
"If a poll has to be taken, the presiding officer shall ascertain by show of hands or otherwise how many of the electors present and entitled to vote at the election for the ward are in favour of each of the candidates in respect of whom the poll is taken and shall declare the candidate or candidates to whom the largest number of votes have been given to have been duly elected."
It is this rule which is now impugned in these applications.
4. The contention of Mr. Mohan Kumara-mangalam who argued the case for the petitioners is that the classification of panchayats into two classes, namely, those which fall within part I and others which fall under part II of the amended rules offends against the principle of equality and equal protection declared by Article 14 of the Constitution. Though he concedes, as he needs must, that classification by itself is not unconstitutional, he contends that the basis of the classification should have some real relation to the object of the enactment. Otherwise, it would be arbitrary.
He relied strongly on the summary by his Lordship Fazl Ali J. in -- 'State of Bombay v. F. N. Balsara', AIR 1951 SC 318 at p. 326 (A) of the principles laid down by the Supreme Court in the case of -- 'Charanjitlal v. Union of India', (B) with reference to the guarantee contained in Article 14, and in particular, on the seventh proposition in the summary which is as follows:
"While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."
In -- ' (B)' the same learned Judge laid particular emphasis on this principle enunciated by Professor Willis that a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. Vide also -- 'State of West Bengal v. Anwar Ali Sarkar', (C).
5. We did not understand Mr. Kumaraman-galam to attack the validity of the classification of Panchayats into class I and class II on a population cum income basis for all purposes. Surely, the classification appears obviously reasonable for the purposes of Section 9 and Section 71. Class II panchayats with an estimated annual Income of less than ten thousand rupees are the recipients of grants from the Government out of the percentage of the total land revenue of the State. It was not suggested that the division was in any sense arbitrary from the point of view of the need for financial assistance. What, however, learned counsel contended was that this division on population cum income basis has no substantial relation to elections. Why should voters of one class of panchayats be entitled to the privilege of secret voting and the voters of another class not have that privilege? If secret voting was good and desirable, it was so for every one. There was no justification for making any discrimination. At first blush, the argument appears to be very plausible.
The Government's reply to this argument is twofold. Firstly, they say that this sort of classification for the purpose of elections, that is, in the manner of the voting, is not new and was in force for a very long time, at any rate from the time of the Village Panchayat Act of 1920. Secondly, they point out that the differentiation is justified by the financial implications in respect of each method of voting.
6. The Madras Local Boards Act, 1920, and the Madras Village Panchayat Act, 1920, came into force at about the same time. Under Section 4(2) of the former Act the District Board could with the approval of the Local Government declare by notification any revenue village or villages or any portion or portions thereof to be a union; provided that no area shall be declared to be a union unless it had a population of not less than five thousand. The latter Act provided for the constitution of panchayats. The Act did not apply to the unions created by the former Act. Section 4 (1) of this Act provided that the Local Government may by notification direct the constitution, for any village of a panchayat or panchayats. Rule 12 of the rules relating to the elections of the members of the Panchayat (Notification in Fort St. George Gazette dated February 28, 1922) prescribed the method of open voting. It ran as follows:
"If the number of such candidates is in excess of the number of panchayatdars to be elected, then the presiding officer shall ascertain, by show of hands or otherwise, the number of voters present who are in favour of each qualified candidate and shall declare the candidate or candidates for whom most votes have beers given to have been fully elected."
By Act XI of 1930, the Madras Village Panchayat Act of 1920 was repealed, the village Panchayats wore included within the scope of the Madras Local Boards Act, and the Union Boards were converted into panchayats. For the purpose of elections, the Panchayats were divided into two classes, Panchayats which had been unions and other panchayats. The method of election for the former class was by secret voting whereas for the latter it was by show of hands. There was also a division of unions into major unions and minor unions for administrative purposes. It is thus clear that a classification more or less similar to that contained in Section 5 of the Village Panchayat Act of 1950 was in vogue from the very inception of panchayats as local bodies, and that the method of open voting by show of hands also prevailed for elections to the smaller panchayats.
7. The financial implications of the two methods are indicated generally in the counter affidavit first filed on behalf of the State. Paragraph 6 of the counter affidavit contains the following averments:
"In the case of class I panchayats the mode of voting adopted is the secret ballot. This system of voting entails the allotment of symbols, the provision of ballot boxes, polling booths and a large supervisory staff for the conduct of the election. The said system of conducting the elections entails large expenditure to the panchayats. Class I panchayats, by reason of their income and financial resources are expected to meet the expenditure incidental to the election without any undue strain on their resources. Class II panchayats which have relatively smaller financial resources cannot be expected to meet the expenditure incidental to the system of election by secret ballot. In the interests of the smaller village panchayats, it was therefore deemed expedient that the system of election by show of hands would be more suitable."
8. A supplemental counter-affidavit was filed subsequently on behalf of the State which gives more details:
"3. In the State of Madras, the number of class II panchayats Is 8025 and the number of class I panchayats is 466.
4. If the system of. election by secret ballot is adopted, the expenditure to be incurred by a panchayat would be (a) where the number of voters is 3000 Rs. 300 (b) where the number of is 2000 Rs. 205, and CO where the number of voters 1000 Rs. 130.
5. The system of election by open voting will entail only an expenditure of ten rupees irrespective of the number of voters."
Taking the average expenditure to be Rs. 150 per each class II panchayat, the total would exceed a sum of twelve lakhs of rupees, if the system of election by secret ballot is adopted, whereas the expenditure, if 'open voting is adopted, will be about Rs. 80,000. The expenses of the conduct of elections have to be paid from the funds of the panchayat. In the case of class II panchayats, the income is so meagre that under S. 71 the Government makes grants from a percentage of the total land revenue of the State. Undoubtedly. a drain of twelve lakhs of rupees for elections alone would certainly not be in the interests of the panchayat.
It will thus be seen that the classification based on population and income is not so totally unconnected with the different methods of voting prescribed for the two classes. We cannot say that the classification is for this or any other reason arbitrary or unreasonable.
9. Mr. Kumaraniangalam next contended that even assuming that the Legislature could make a proper classification, it was not permissible to assign that task to the Executive or other administrative bodies. A similar argument was addressed to this court but was rejected. Vide -- 'Lotus Industries Kallai v. State of Madras', (D). It was therein pointed out that on principle classification made by the legislature can be as valid as classification made by executive or administrative bodies. Actually in this case, the classification has been made by the Legislature itself in Section 5. All that has been done by the rules is to prescribe different methods of voting to the two classes mentioned in that section.
10. Mr. Kumaraniangalam, during the course of his argument, appeared to contend that every citizen had a fundamental right to vote secretly. There is no warrant for such an assumption. Indeed, historically, the system of voting by secret ballot was' not at one time so universal as it is now. South Australia was the first State in recent times to introduce secrecy of the ballot in 1856. Then the system spread to Europe and America-It was brought into England by the Ballot Act of 1872. While it is true that secrecy of the ballot provides a safeguard to the purity of elections, there have been varying opinions as regards the desirability of secret voting. Even today in the legislative bodies, the vote is taken openly. In ancient Greece and Rome, elections to the Assemblies were conducted by the method of voting by show of hands, though for some purposes secret ballot was resorted to. Likewise. In ancient India, we had both the methods prevailing. There is nothing in our Constitution which makes voting by secret ballot compulsory for elections to all the local bodies.
11. Mr. Kumaramangalam based an argument on the provisions of Section 15 of the Madras Village Panchayat Act, 1950. That section disqualifies every person convicted of an offence, punishable under Chapter IX-A, I. P. c., or under any law or rule relating to the infringement of the secrecy of an election from voting or being elected for a particular period. Because there is a reference to "rule relating to the infringement of the secrecy of an election", it was contended that the Legislature contemplated only secret election to the panchayats. In our opinion, there Is nothing in Section 15 which has any bearing on the question now in issue from the fact that there is mention of a rule relating to secrecy of an election, it does not follow that every election under the Act should only be by the method of secret voting. Even under the amended rules, in respect of elections to certain panchayats, the method of secret election does apply.
12. Our attention was drawn to a passage in the speech of the Hon'ble Minister who introduced the bill in the Legislative Assembly which indicates that election by secret ballot was what was contemplated. We do not think that we can in any way be guided by any speeches made even by ministers in the Assembly. If it was the intention of the Legislature to provide for voting by secret ballot, compulsorily for all the elections to the Panchayat. such an intention might well have been directly expressed. On the other hand, the Legislature was quite content to leave the manner of election to be prescribed by the Government. See Section 1. In saying this we should not be understood as not being fully alive to the merits of voting by secret ballot.
"Absolute secrecy in voting reaches effectively a great class of evils, including violence, intimidation, bribery and corrupt practice, dictation by employers or organisations, the fear of ridicule and dislike, or of social or of commercial Injury in fact of coercive and improper influence of every sort depending on a knowledge of the voter's action." (Duraiswami Alyangar's Law of Municipal Corporations, 2nd Edn., page 62).
While we are prepared to hold that the rules providing the method of open voting for election to the smaller panchayats are neither invalid nor unconstitutional, we cannot refrain from, express-ing the hope that the Government will be able to devise cheaper machinery for the conduct of elections by secret voting, so that It may be possible to introduce that method to every panchayat irrespective of its population or income.
13. We hold that the amended rules of September 1952 in so far as they provide for open voting at elections to certain classes of pancnayats are not invalid and do not offend against any provision of the Constitution.
14. In view of the above judgment, W. P. Nos. 144. 145. 156. 249 and 257 which raise no other points are dismissed.