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1997(6) Supreme 220
SUPREME COURT OF INDIA
J.S. Verma, CJI., Mrs. Sujata V. Manohar & B.N. Kirpal, JJ.
Anukul Chandra Pradhan, Advocate, Supreme Court -Petitioner
versus
Union of India & Ors. -Respondents
Writ Petition (Crl.) No. 137 of 1996
Decided on 9-7-1997
Counsel for the Parties :
For the Intervenor, Rajinder Sachar, Sr. Advocate, Sanjay Parikh, Advocate.
For the Respondents, Pallav Sisodia, Advocate, for P. Parmeshwaran, Advocate.
For the Commission, A.M. Khanwilkar, Advocate.
Held 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. (Para 7)
Further held : 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 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 others 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 results 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; 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. (Para 8)
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. (Para 10)
(ii) Election Law-Right to vote-Statutory right-It is subject to limitations imposed by the statute which can be exercised only in the manner provided by statute-Challenge to any provision in the statute prescribing nature of right to elect cannot be made with reference to a fundamental rights in the Constitution. (Para 10)
JUDGMENT
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, and 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 disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall vote a general election in more than one constituency of the same class, and if a person votes in more than 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 been registered in the electoral roll for that constituency more than once, an 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."
2. 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 once 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).
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 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 furnish 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. It 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 i
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