In the present case, the High Court of Delhi uphold the constitutional validity of Section 62(5) of the Representation of the People Act, 1951, the Delhi High Court has re-affirmed that the prisoners have no right to vote.
The judgment was passed by division bench of the High Court of Delhi consisting justice D.N.Patel, Chief Justice and Justice C.Hari Shankar in PRAVEEN KUMAR CHAUDHARY & ORS. V. ELECTION COMMISSION OF INDIA & ORS.
It was a public interest litigation filed by the petitioner with following prayers:
(A) Issue a writ of mandamus or any other writ quashing Section 62(5) of Representation of the People Act, 1951 as violative of the basic structure of the Constitution;
(B) Issue a writ of mandamus or any other writ staying operation of Section 62(5) of Representation of the People Act, 1951 pending the hearing and disposal of the present Writ Petition;
(C) Issue a writ of mandamus or any other writ directing the respondents to ensure that they should provide facilities and amenities to prisoners to cast their vote from jail premises pending the hearing and disposal of the present Writ Petition;
(D) Pass any such directions or order which this Hon’ble Court deems fit and proper in the facts and circumstances of the above mentioned case.
Arguments by petitioner:
- Section 62(5) of the Representation of the People Act, 1951 (hereinafter “the Act”) and submitted that the said provision of the Act is violative of the basic structure of the Constitution. Section 62 (5) of the Act is as follows:
(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.
Provided further that by reason of prohibition to vote under this sub-section, a person whose name has not been entered in the electoral roll shall not cease to be an elector.
- The petitioner who appeared as petitioner in person argued that there is no valid classification between the persons who are in jail and the persons who are on bail or out of jail. He further pointed out that as per second proviso to Section 62 (5) of the Act, by reason of prohibition to vote, a person whose name has not been entered in the electoral roll shall not cease to be an elector meaning thereby that such person can contest the election but he/she cannot cast his/her vote if he/she is in jail. Thus it was the submission of the petitioner that this type of classification is not valid in the eyes of law and is violative of Article 14 and basic structure of the Constitution of India.
Arguments of respondent:
- The learned counsel for respondent, who was election commission in present case, this issue has already been raised before the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors  and reliance was placed on the paragraphs 3 to 6, 8 and 12, wherein the Supreme Court, in paragraph number 12 held that:
“ 12. It must be held that the right to vote is subject to the limitations 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 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.”
Decision of the High Court of Delhi:
The Hon’ble High Court of Delhi held that while referring to the above Supreme Court decision, right to vote is not one of the common law rights but it is a right 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. The classification has already been held as valid classification by the Hon’ble Supreme Court between persons who are out of jail and persons who are in jail.
The reliance was further placed on the S. Radhakrishnan vs. Union of India & Ors. judgment dated 17th August, 1999, the Supreme Court in paragraph 2, wherein the while deciding the case placed reliance on Anukul Chandra Pradhan case and held that:
“It was opined that the object of Section 62(5) is to prevent criminalisation of politics and maintain probity in elections and that any provision which furthers that aim and promotes the object has to be welcomed, as subserving a great constitutional purpose. We are in respectful agreement with the view expressed by the three Judge Bench in Anukul Chandra Pradhan’s case and are not persuaded to take a different view. This writ petition, therefore, fails and is dismissed.”
The High Court made reference to the decisions of The Hon‟ble Supreme Court in Mahendra Kumar Shastri vs. Union of India & Anr and a Division Bench of Delhi High Court in a judgment reported in Manohar Lal Sharma vs. Union of India, where it was held that
“25. It is trite that right to vote’ is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by the people of India”
By referring to above decisions of the Honb’le Supreme Court and Delhi High Court, the division bench upheld the constitutionality of section 62 (5) is constitutionally valid. 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. Accordingly, the petition was dismissed.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
(1997) 6 SCC 1
(1984) 2 SCC 442
2014 (141) DRJ 157