Prisoners have no right to vote, Delhi HC re-affirms constitutional validity of Section 62(5) Representation of People Act

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The Division Bench consisting of Chief Justice DN Patel and Justice C Hari Chandrasekhar passed a judgment upholding the constitutional validity of Section 62(5) of Representation of People Act. The petition was submitted by Praveen Kumar Chaudhary in which the contention was Section 62(5) RP Act violative of the basic structure of the Constitution. The argument made by the Petitioner was that under-provision; there is no classification between the persons in Jail and the person who is in bail or out of jail. Further, the second proviso of Section 62(5) was highlighted, which says, while a person whose name has not been entered in the electoral roll does not cease to be an elector and can also contest the election, he/she cannot cast his/her vote if he/she is in jail. Therefore, this type of classification isn’t valid in the eyes of law and violative to Article 14 of the Constitution of India.

Nevertheless, the argument which was made by the Election Commission of India (ECI) was that the issue has already been directed by the Supreme Court of India in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors (1997). One of the essential paragraphs which were submitted by Learned Counsel appearing for the Respondent was Article 14 permits reasonable classification which has a rational nexus with the object of classification. Other reasons are justifying this classification. It is well known that for the conduct of free, fair and orderly elections, there is a 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 arrangements in the conduct of elections. The classification of a person in or out of prison separately is reasonable, 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 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 Delhi High Court gave the Judgment to this matter that and reiterated that Right to vote is neither a Fundamental Right nor Constitutional Right. Further, the bench added that “Right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”

In the end, the bench concluded that there is a constitutional validity to Section 62(5) of Representation of People Act & “The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved  …”

The Hon‟ble Supreme Court in Mahendra Kumar Shastri vs. Union of India & Anr., (1984) 2 SCC 442 held as under:-

“We do not find any merit in the contentions urged by the petitioner in the writ petition. The disability which is imposed under Section 62(5) of the Representation of the People Act is equally applicable to all persons similarly situate mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing peoples’ representatives and there is no arbitrariness or discrimination involved. Rule is discharged and the writ Petition is dismissed.”

Key-Features:

  • Writ Petition was dismissed by the Division Bench of Delhi High Court.
  • Advocate Sidhant Kumar represented the Election Commission & Petition appeared in Person.
  • The Election Commission of India argued that issue was already decided by the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors(1997).
  • The Petitioner submitted, was not valid in the eyes of law and was violative of Article 14 of the Constitution of India.
  • The Petitioner raised out the second proviso to Section 62(5) RP Act.

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje

End-Notes:

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