The right to vote is not a fundamental right but a statutory right, and Section 62(5) of the Representation of People Act, 1951, which prohibits prisoners from voting, is not unconstitutional.

S. B. Sinha, J.

1. In this writ application the question as to whether the persons, who are in custody having been convicted of an offence or are undertrial prisoners, have any right to exercise their franchise under the provisions of Representation of People Act, 1951 (hereinafter called and referred to as the said Act), arises for consideration.

2. In this public interest litigation the petitioner has contended that like any other citizens of India a person who has been convicted of an offence or is a under-trial prisoner has a fundamental right to cast his vote in terms of Article 19 (1) (a) of the Constitution of India.

3. The stand of the Respondents on the order hand, is that in view of the Sec.62 (5) of the said Act, such a right has expressly been taken away. Accord to the respondents the Supreme Court in Mahendra Kumar Shastri v. Union of India and another, reported in AIR 1983 page 2 has upheld the constitutianality of the aforementioned provision.

4. Mr. K. P. Verma, through whom this writ application has been filed and who has appeared in person, submitted that a right to vote is a fundamental right as guaranteed under Article 19 (1) of the Constitution of india inasmuch as only by reason thereof a person can expresses his opinion with reg to the fitness of the candidates to represent of the people. According to mr. Verma, therefore a right to vote should be considered to be the means of expressing ones view, so as to bring it within the purview of Article 19 (1) (a) of the Constitution of India. In this connection, Mr. Verma has strongly relied up on a constitutional Bench decision of the Supreme Court in smt. Maneka Gandhi V/s. Union of India and another, reported in 1978 Supreme court page 597, wherein it has been held that passport is the means to enforce the fundamental right of a person to travel abroad.

5. Mr. Verma, has further pointed out that by reason of the provisions as contained in Sec.62 (5) of the said Act, only such persons who came within the purviso thereof are prohibited from contesting an election.

6. Mr. Verma, submitted that if a person who although is convicted or is an under-trial prisoner is not precluded from contesting an election, the question of such a persons ceasing to have any right to vote does not arise. According the learned counsel Sec.62 (5) of the said Act, is, therefore not only violative of Article 19 (1) (a) of the Constitution of India but also being inconsistent with the provisions of Sec.8 of the said Act, the same is liable to be struck down.

7. Mrs. Renuka Sharma, learned standing counsel, Central Government, on the ether and hand submitted that the right to vote is not a fundamental right but a right created under the said Act itself. According to the learned counsel, therefore, sub-section 5 of Sec.62 of the said Act having expressly taken away the right of a person to cast his vote, such a provision cannot be said to be unconstitutional.

8. The learned counsel in this connection has relied upon in Mahendra kumar V/s. Union of India, reported in AIR 1983 SC page 299 and in Kabul singh V/s. Kimdan Singh and others, reported in ATR 1970 SC page 340

9. In view of the rival contentions aforementioned, the only question which arises for consideration is as to whether sub-section 5 of Sec.62 of the Representation of People Act, 1951 is ultra vires the constitution of india or not.

10. The said Act was enacted for conduct of election to the houses of parliament and to the House or Houses of the legislation of, each State, the qualification and disqualification for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputed arising out of or in connection with such elections.

11. Part I of the said Act, inter alia deals with the interpretation clauses. Part 2 deals with qualification and dis-qualification of membership of parliament. Sec.8 of the said Act which appears in this pa