CASE ANALYSIS: ANUKUL CHANDRA PRADHAN VS UNION OF INDIA

& ORS

CASE NUMBER

Writ Petition (Crl.) No. 137 of 1996

BENCH

Cji, Sujata V. Manohar, B. N. Kirpal

DATE OF JUDGMENT

09 July 1997

FACTS AND PROCEDURAL HISTORY

By this petition under Art. 32 of the Constitution challenge is made to the constitutional validity
of sub-sec. (5) of S. 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 S. 16 of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at 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,
and 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-sec. (2) debars a person from voting at the election if he is subject to any of
the disqualifications referred to in S. 16 of the Representation of the People Act, 1950, which
deals with disqualifications for registration in an electoral roll. Sub-sec. (3) forbids every person
from voting in more than one constituency of the same class. Sub-sec. (4) forbids every person
from voting in the same constituency more than once. Sub-sec. (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-sec. (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-sec. (5).

ISSUES BEFORE THE COURT

1. this petition under Art. 32 of the Constitution challenge is made to the constitutional validity
of sub-sec. (5) of S. 62 of the Representation of the People Act,

2. The question is whether the classification made by sub-sec. (5) of S. 62 is reasonable or not.

ARGUMENTS

The argument of Shri Rajinder Sachar, the learned counsel for the petitioner, is that sub-sec. (5)
of S. 62 of the Act violates Articles 14 and 21 of the Constitution. The submission is that the
expression "or otherwise" in sub-sec. (5) of S. 62 has a very wide connotation and denies voting
right even to undertrials 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
charge-sheet 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 Art. 14 of the Constitution. It was further contended by the learned
counsel that there is violation also of Art. 21 inasmuch as the restriction placed on the prisoners
right to vote by sub-sec. (5) of S. 62 of the Act denies dignity of life. In substance, the challenge
to the constitutional validity of sub-sec. (5) of S. 62 is based primarily on Art. 14 of the
Constitution.

The learned counsel, Shri Sachar argues that persons in preventive detention cannot be classified
separately. That by itself would not result in the invalidity of whole of sub-sec. (5), but can affect
the validity only of the proviso therein. The challenge in the present case is not merely to the
proviso, but to the whole of sub-sec. (5).

REASONING

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-sec. (5) of S. 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.

In view of the settled law on the point, it must be held that 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-sec. (5) of S. 62 of the Act is, therefore, not available and this
petition must fail.

DECISION OF THE COURT

It is settled that Art. 14 permits reasonable classification which has a rational nexus with the
object of classification

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 subserving the constitutional
purpose. The elbow room available to the legislature in classification depends on the context 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 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 free 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.

6. The effect of sub-sec. (5) of S. 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.
7. The learned counsel, Shri Sachar argues that persons in preventive detention cannot be
classified separately. That by itself would not result in the invalidity of whole of sub-sec. (5), but
can affect the validity only of the proviso therein. The challenge in the present case is not merely
to the proviso, but to the whole of sub-sec. (5). This argument does not, therefore, advance the
petitioners case. However, for the purpose of the present challenge, it is sufficient to say 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.

It may also be mentioned that the nature of right to vote has been held to be a statutory right and
not a common law right because of which it depends on the nature of right conferred by the
statute. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 , the
Constitution Bench held :

"The right to vote or stand as a candidate for election is not a civil right but is a creature of
statute or special law and must be subject to the limitations imposed by it."

10. In Jumuna Prasad Mukhariya v. Lachhi Ram, 1955(1) SCR 608, the Constitution Bench
reiterated :

".........The right to stand as a candidate and contest an election is not a common law right. It is a
special right created by statute and can only be exercised on the conditions laid down by the
statute. The Fundamental Rights Chapter has no bearing on a right like this created by
statute.........."

11. In Jyoti Basu v. Debi Ghosal, 1982(1) SCC 691, 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
SCR 218 and Jagan Nath v. Jaswant Singh, 1954 SCR 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 be elected. So is the right to dispute an election. Outside of statute, there is no right to elect,
creations they are, and therefore, subject to statutory limitation."

Consequently, this petition is dismissed. No costs.

CONCLUSION

In the context of the provisions made in the election law, observed that they have been made to
exclude persons with criminal background, of the kind specified therein, from the election scene
as candidates and voters with the object to prevent criminalization of politics and maintain
propriety in elections. Thereafter, the three-Judge Bench opined that any provision enacted with
a view to promote the said object must be welcomed and upheld as subserving the constitutional
purpose.