TMI Blog1997 (7) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 than once, notwithstanding that his name may have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 autom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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