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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
B. VIJAYSEN REDDY, J.
Smt. Irpa Buchamma W/o. Irpa Jogaiah - Petitioner
Versus
The State of Telangana, Home and Prisons Department and others - Respondents
Writ Petition No. 32868 of 2021
Decided On : 08-12-2021
Constitution of India,1950 - Articles 14, 226 and 21 - Representation of the People Act, 1951 - Section 62(5) - Valuable right to vote for protecting the rights of people - Exercise his right to vote for electing the Member of Telangana Legislative Council - Son of the petitioner was arrested Police Station produced before the I Additional Judicial Magistrate of Fist Class remanded to judicial custody. Since then he is in judicial custody - Son of petitioner is an elected member of As on date, he is a voter in the election of the Telangana Legislative Council Constitution; As the tenure of previously elected members of Telangana Legislative Council is expiring term of the elected member comes to an end Election Commission of India (ECI) issued notification for conducting elections to Telangana Legislative Council through its notification - son of the petitioner is in prison as an under trial prisoner, unless he is produced with escort before concerned polling booth cannot exercise his right to vote for electing the Member of Telangana Legislative Council from Khammam Constituency members of Telangana Legislative Council are to be elected by the elected candidates of Municipal Corporations, Municipalities, Nagar Panchayats, Cantonment Boards, name of son of the petitioner is shown of the electoral roll for the polls at Polling Station 1 –, Meeting Hall - It is grievance of petitioner that if her son is not allowed to cast his vote, his valuable right to vote for protecting the rights of people, who have elected him - Order to protect democratic right i.e. right to vote, which is a valuable right in democracy, it is just and necessary to enable him to cast vote on the date of polling – Held, 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 arrangement in the conduct of elections - 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 - 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 - Classification of persons in and out of prison separately is reasonable - Restriction on voting of a person in prison result 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 - Court does not find any merit in the submissions of the learned counsel for the petitioner - There is no distinction made between a convict or under trial prisoner under Section 62(5) of the Act - petitioner was not able to come out of jail, as his bail applications might have been dismissed - It is not as if there is no remedy available, to the petitioner, under the Criminal Procedure Code, which is the relevant statute for securing bail- Having not availed such remedy, petitioner cannot be permitted to take the route of so-called violation of fundamental rights - Nothing prevented the petitioner from seeking bail at least for limited purpose of casting vote. Having not availed that remedy, the petitioner cannot be permitted to approach this Court on the premise of violation of fundamental rights - Writ petition is dismissed.
ORDER :
Whether an under trial prisoner has a right to vote in elections is the question involved in this writ petition.
2. The son of the petitioner, Irpa Rama Rao, was arrested in Cr.No.8 of 2021 of Cherla Police Station on 05.02.2021 and produced before the I Additional Judicial Magistrate of Fist Class (Special Court for Naxal Cases), Khammam, and remanded to judicial custody. Since then he is in judicial custody. It is stated that the son of the petitioner is an elected member of the Mandal Praja Parishad from Kurnapalli, Cherla Mandal; As on date, he is a voter in the election of the Telangana Legislative Council of Khammam Constitution; As the tenure of the previously elected members of the Telangana Legislative Council is expiring on 04.01.2022 and the term of the elected member comes to an end on 04.01.2022, the Election Commission of India (ECI) issued notification for conducting elections to the Telangana Legislative Council through its notification No.ECI/PN/92/2021 dated 09.11.2021; As per the schedule, the date of poll for electing the members of Telangana Legislative Council, Khammam District, is 10.12.2021.
3. It is further stated that as the son of the petitioner is in prison as an under trial prisoner, unless he is produced with escort before the concerned polling booth on 10.12.2021, he cannot exercise his right to vote for electing the Member of Telangana Legislative Council from Khammam Constituency. The members of the Telangana Legislative Council are to be elected by the elected candidates of Municipal Corporations, Municipalities, Nagar Panchayats, Cantonment Boards, Zilla Praja Parishads and Mandal Praja Parishads. The name of the son of the petitioner is shown at Sl.No.53 of the electoral roll for the polls at Polling Station 1 – Bhadrachalam, Meeting Hall. It is the grievance of the petitioner that if her son is not allowed to cast his vote, his valuable right to vote for protecting the rights of people, who have elected him, will be defeated. It is contended that in order to protect the democratic right i.e. right to vote, which is a valuable right in democracy, it is just and necessary to enable him to cast vote on the date of polling.
4. Heard learned counsel for the petitioner and learned counsel for the Election Commission of India / respondent No.2, and perused the material on record.
5. The learned counsel for the Election Commission of India has submitted that there is a bar for the petitioner, who is an under trial prisoner, to vote under Section 62(5) of the Representation of the People Act, 1951 (for short ‘the Act’). The said provision is reproduced hereunder :
(1) …
(2) …
(3) …
(4) …
(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.”
6. The learned counsel for the Election Commission of India has further submitted that the constitutional validity of the aforesaid provision was questioned before the Supreme Court in ANUKUL CHANDRA PRADHAN v. UNION OF INDIA, (1997) 6 SCC 1 and it was held that there is no fundamental right to vote and it is only statutory right. The Supreme Court made the following observations :
5. There are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcome and upheld as subsisting the consti
The right to vote is a statutory right, barred for individuals in judicial custody under Section 62(5) of the Representation of the People Act, 1951, even if their names are on the electoral roll.
The main legal point established in the judgment is that the prohibition against the exercise of the right to vote under Sec. 62(5) of the Representation of the People Act, 1951 applies to the electi....
Preventive detainees entitled to postal ballot voting; independent verification required to ensure fair facilitation.
The right to contest elections is a statutory right, not a fundamental right, allowing restrictions based on criminal background to protect electoral integrity.
The main legal point established in the judgment is that when seeking release from prison to exercise a democratic right such as casting a vote, the appropriate legal remedy is to resort to the provi....
Once election is over, no relief under Article 226 can be granted to permit postal voting after the polling date has passed.
The right to vote is a constitutional right, not merely a statutory right, and subsidiary legislation cannot infringe upon it, according to the Federal Constitution.
The main legal point established in the judgment is the importance of following the statutory provisions and the elaborate challenge procedure provided under the UP Panchayat Raj Act, 1947, and exerc....
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