TMI Blog2020 (2) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT D.N.PATEL, Chief Justice (Oral) C.M.No.29164/2019 (by R-1 3 for delay in filing counter affidavit) 1. This is an application filed by respondents No.1 3/Election Commission of India for condonation of 28 days in filing the counter affidavit. 2. For the reasons stated in the application, delay in filing the counter affidavit is condoned and the counter affidavit is taken on record. 3. The application is disposed of. W.P.(C) No.2336/2019. 4. This public interest litigation has been preferred with the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he persons who are in jail and the persons who are on bail or out of jail. He has also pointed out that as per second proviso to sub- Section (5) of Section 62 of the Act, 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 meaning thereby that such person can contest the election but he/she cannot cast his/her vote if he/she is in jail. It is, therefore, submitted by the petitioners 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. 7. Learned counsel appearing for the respondent/Election Commission of India submitted that this issue has already been raised before the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India Ors, (1997) 6 SCC 1, paragraphs 3 to 6, 8 and 12 thereof reads as under:- 3. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect 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. xxx xxx xxx 8. 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 arrangements in the conduct of elections. Apart from the resource crunch, the other constraints relating to availability of more police force 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litics is the bane of society and negation of democracy, rejected the challenge to the validity of the said Section. 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 (supra) and are not persuaded to take a different view. This writ petition, therefore, fails and is dismissed. No costs. 10. In view of the aforesaid decision also Section 62(5) of the Act is constitutionally valid and right to vote is not a fundamental right but it is a statutory right and it can be made limited by the statute. 11. 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 men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Namakkal Constituency, 1952 SCR 218 and Jagan Nath v. Jaswant Singh, 1954 SCR 892 = AIR 1954 SC 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case. 8. The 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, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. 26.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 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 RP Act of 1951 was, therefore, held to be not available. 13. In view of the aforesaid discussion, we hold that Section 62(5) is constitutionally valid. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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