New Delhi: A secret ballot during vote of confidence’ by the Chief Minister Edapadi Palanichamy is permissible in the Constitution if the circumstances so warrant and if it is necessary to uphold the larger principle of free and fair elections.
Senior counsel Gopal Subramanium made this submission before a Bench of Justices Dipak Misra, Amitav Roy and A.M. Kanwilkar, hearing a petition filed by K. Pandiarjan of OPS faction challenging the Speaker's decision not to allow secret ballot during the vote of confidence on February 18.
Mr. Subramanium said the Speaker was under a duty to conduct the confidence motion by ‘Secret Ballot’ in the given circumstances to fulfil his constitutional mandate and assure free and fair voting on the floor of the house. He argued that the Speaker's actions in conducting the motion of confidence in absence of the opposition and without a secret ballot were arbitrary, mala fide and against the rules of natural justice.
The Speaker ought to have made his decision keeping in mind that the MLAs were under threat of duress to vote for Mr. Palanichamy.
He said the apex court does have the power of judicial review jurisdiction under Article 32 to quash the Speaker's decision rejecting request for secret ballot since it is on extraneous grounds and smacks of malafide. The Court may issue an appropriate direction to conduct afresh the Confidence Motion in the nature of mandamus or any other writ.
Counsel argued that the scheme of our Constitution does not prohibit a secret ballot in a trust vote. The most important balancing interest, which is relevant in deciding upon the efficacy of a secret ballot, is whether it would promote corruption in the form of defection of elected representatives by voting across party lines.
The Speaker's statements on the day of the motion as evidenced from the minutes of proceedings further make it clear that he was in an undue haste to conduct the trust vote instead of making sure that proper procedure in the circumstances was followed. It is submitted that his decision therefore to not conduct the trust vote by secret ballot was arbitrary and is liable to be set aside by this Court. Bench posted the matter for on September 11.
