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PETITIONER: ANUKUL CHANDRA PRADHAN, ADVOCATE, SUPREME COURT

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       09/07/1997

BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT: Present:                  Hon’ble the Chief Justice                  Hon’ble Mrs. Justice Sujata V. Manohar                  Hon’ble Mr. Justice B.N. Kirpal In-Person for Petitioner Rajinder Sachar,  Sr. Adv., Sanjay Parikh, Adv, with him for Intervenor. Pallav Sisodia,  Adv, for  P.  Parmeshwaran,  Adv.  for  the Respondents A.M. Khanwilkar, Adv. for Election Commission.                       J U D G M E N T The following Judgment of the Court was delivered : J U D G M E N T Verma, CJI:      By this  petition under  Article 32 of the Constitution challenge is  made to  the constitutional  validity of  sub- section (5)  of Section  62 of  the  Representation  of  the People Act 1951 . Section 62 relates to right to vote and is as under:      "62. Right  to vote.- (1) No person      who is  not, a  except as expressly      provided by  this Act, every person      who is,  for the time being entered      in  the   electoral  roll  of:  any      constituency shall  be entitled  to      vote in that constituency.      (2) No  person  shall  vote  at  an      election in  any constituency if he      is  subject   to  any   of  the   a      disqualifications  referred  to  in      section 16 of the Representation of      the People Act, 1950 (43 of 1950).      (3)  No   person  shall  not  at  a      general election  in more  than one      constituency of the same class, and      if a  person votes  is more  an one      such constituency, his votes in all      such constituencies shall be void.      (4) No person shall at any election      vote in  the same constituency more

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    than once, notwithstanding that his      name may  have been  registered  in      the   electoral   roll   for   that      constituency more than once, and if      he does  so vote,  all his votes in      that constituency shall be void.      (5) No  person shall  vote  at  any      election if  he is  confined in.  a      prison, whether under a sentence of      imprisonment or  transportation  or      otherwise,  or  is  in  the  lawful      custody of the police           Provided that  nothing in this      sub-section shall apply to a person      subjected to  preventive  detention      under any law for the time being in      force."      Section 62  contains five  sub-sections Sub-section (1) says that  every person who is for the time being entered in the electoral  roll of any constituency shall be entitled to vote in  that constituency.  Sub-section (2) debars a person from voting  at the  election if he is subject to any of the disqualifications  referred   to  in   Section  16   of  the Representation of  the People  Act  1950  which  deals  with disqualifications for registration in an electoral roll. Sub section (3)  forbids every  person from  voting in more than one constituency  of the same class. Sub-section (4) forbids every person  from voting in the same constituency more than once.   Sub-section (5)  debars  a  person  to  vote  in  an election if  he is  confined in  a prison  whether  under  a sentence of  imprisonment or  transportation or otherwise or is in  the lawful custody of the police. The proviso to Sub- section (5)  carves out  an exception for a person subjected to preventive  detention under any law for the time being in force. Thus  a person  confined in a prison under a sentence of imprisonment or otherwise or in the lawful custody of the police is  debarred from  voting at  any election during the period of  his confinement  in the prison, but this bar does not apply  to a  person under  preventive detention.  We are concerned with  the constitutional  validity of  sub-section (5).      The argument  of Shri.  Rajinder  Sachar,  the  learned counsel for  the petitioner,  is  that  sub-section  (5)  of Section 62  of the  Act violates  Articles 14  and 21 of the Constitution. The  submission is  that  the  expression  "or otherwise" in  sub section (5) of Section 62 has a very wide connotation and denies voting right even to under-trials and other persons detained in a prison for any reason, including the reason  of inability  to finish  bail. He submitted that the restriction applies to a person in lawful custody of the police  which   would  include   a  person  detained  during investigation before  a chargesheet  has been  filed against him. On  the other hand, a person convicted and sentenced to imprisonment but  released on bail is permitted to vote. The learned counsel  contended that  this is  discrimination and violates Article  14 of  the Constitution.  lt  was  further contended by  the learned  counsel that  there is  violation also of Article 21 inasmuch as the restriction placed on the prisoner’s right to vote by sub-section (5) of Section 62 of the Act  denies dignity of life. In substance, the challenge to the constitutional validity of sub-section (5) of Section 62 is based primarily on Article 14 of the Constitution.      It  is  settled  that  Article  14  permits  reasonable classification which has a rational nexus with the object of classification. The  question is  whether the classification

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made by sub-section (5) of Section 62 is reasonable or not      There are  provisions made  in the  election law  which exclude  persons   with  criminal  background  of  the  kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain  probity in  elections. Any  provision  enacted with a  view to  promote this  object must  be  welcome  and upheld as  subsisting the  constitutional purpose. The elbow room available  to the legislature in classification depends on  the   context  and  the  object  for  enactment  of  the provision. The  existing conditions  in which the law has to be applied  cannot be  ignored  in  adjudging  its  validity because it  is relatable to the object sought to be achieved by the  legislation. Criminalisation of politics is the bane of society  and negation a of democracy. It is subversive of free and  fair elections  which is  a basic  feature of  the Constitution. Thus,  a provision made in the election law to promote  the   object  of   fight  and  fair  elections  and facilitate maintenance  of  law  and  order  which  are  the essence of  democracy must,  therefore, be  so viewed.  More elbow room  to the  legislature for classification has to be available to achieve the professed object.      The effect  of sub-section (5) of Section 62 of the Act is that any person who is confined in prison while serving a sentence of  imprisonment on  his conviction for any offence or is  under lawful  confinement in  a prison or in a police custody for  any reason  is  not  entitled  to  vote  in  an election, but  this restriction  does not  apply to a person subjected to any kind of preventive detention      The learned counsel, Shri Sachar argues that persons in preventive detention  cannot be  classified separately. That by itself  would not  result in  the invalidity  of whole of sub-section. (5),  but can  affect the  validity only of the proviso therein.  The challenge  in the  present case is not merely to  the proviso, but to the whole of sub-section (5). This argument  does not, therefore, advance the petitioner’s case. However,  for the purpose of the present challenge, it is sufficient to say that preventive detention differs from imprisonment on  conviction or  during investigation  of the crime of an accused which permits separate classification of the detenus under preventive detention. Preventive detention is to prevent breach of law while imprisonment on conviction or during  investigation is  subsequent to the commission of the crime.  This distinction permits separate classification of a person subjected to preventive detention.      There are other reasons justifying this classification. It is  well known  that for  the conduct  of free,  fair and orderly elections,  there is  need  to  deploy  considerable police force. Permitting every person in prison also to vote would require  the deployment  of a much larger police force and much  greater security  arrangement in  the  conduct  of elections. A  part  from  the  resource  crunch,  the  other constraints relating  to availability  of more police forces and infrastructure  facilities  are  additional  factors  to justify the  restrictions  imposed  by  sub-section  (5)  of Section 62. A person who is in prison as a result of his own conduct and   is,  therefore, deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech  and expression  with the other who are not in prison.  The classification  of persons  in  and  out  of prison separately  is reasonable. Restriction on voting of a person in  prison result  automatically from his confinement as a  logical consequence  of  imprisonment.  A  person  not subjected to  such a  restriction is  free to vote or not to vote depending  on whether  he wants  to go  to vote or not;

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even he  may choose  not to go and cast his vote. In view of the restriction  on movement  of a prisoner, he cannot claim that he  should be  provided the  facility to  go and  vote. Moreover, if  the object  is to  keep persons  with criminal background  away   from  the  election  scene,  a  provision imposing a  restriction on  a prisoner  to  vote  cannot  be called unreasonable.      It may  also be  mentioned that  the nature of right to vote has  been held to be a statutory right and not a common law right because of which it depends on the nature of right conferred by  the statute.  In N.P.  Ponnuswami v. Returning Officer, Namakkal  Constituency and Other, [1952] S.C.R. 218 at 236, the Constitution Bench held :      "The right  to vote  or stand  as a      candidate for  election  is  not  a      civil right  but is  a creature  of      statute or  special law and must be      subject to  the limitations imposed      by it."      ln Jumuna Prasad Mukhariya and Others v. Lachhi Ram and Others, [1955]  1 S.C.R.  608 at 610, the Constitution Bench reiterated:      "...The  right   to  stand   as   a      candidate and  contest an  election      is not  a common law right. It is a      special right  created  by  statute      and can  only be  exercised on  the      conditions   laid   down   by   the      statute.  The   Fundamental  Rights      Chapter has  no bearing  on a right      like this created by statute...".      In Jyoti  Basu v. Debi Ghosal, (1982) 1 SCC 691 at 696, the law on the point was restated, thus:           "The nature  of the  right  to      elect, the  right to be elected and      the right  to dispute  an  election      and    the     scheme    of     the      constitutional    and     statutory      provisions  in  relation  to  these      rights have  been explained  by the      Court   in   N.P.   Ponnuswami   v.      Returning     Officer,     Namakkal      Constituency, [1952] S.C.R. 218 and      Jagan Nath v. Jaswant Singh, [1954]      S.C.R. 892.  We  proceed  to  state      what we  have gleaned from what has      been said, so much as necessary for      this case.           A right  to elect, fundamental      though  it  is  to  democracy,  is,      anomalously   enough,   neither   a      fundamental right  nor a common law      right. It  is pure  and  simple,  a      statutory right. So is the right to      be elected.  So  is  the  right  to      dispute  an  election.  Outside  of      statute,  there   is  no  right  to      elect,  creations   they  are,  and      therefore,  subject   to  statutory      limitation."      In view  of the  settled law  on the  point, in must be held that  the right  to vote  is subject  to the limitation imposed by  the statute  which can  be exercised only in the manner provided  by the  statute; and  that the challenge to any provision in the statute prescribing the nature of right

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to elect  cannot be  made with  reference to  a  fundamental right in  the Constitution.  The very  basis of challenge to the validity  of sub-section(5) of Section 62 of the Act is, therefore, not available and this petition must fail.      Consequently, this petition is dismissed. No costs.