Delhi High Court has refused to declare section 62(5) of the Representation of the People Act, which prohibits prisoners from voting in elections, as unconstitutional.
While upholding the validity of the said provision, the Division Bench of Chief Justice DN Patel and Justice Hari Shankar has held that the classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved by the Act.
The present plea of Public Interest Litigation was filed by one of the prisoners, challenging the constitutional validity of section 62(5) of the Representation of the People Act. The said provision reads as:
'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.'
The petition had also sought for a direction to be issued to the Election Commission to ensure that it should provide facilities and amenities to prisoners to cast their vote from jail premises pending the hearing and disposal of the present plea.
In order to highlight that section 62(5) violates the basic structure of the Constitution, the Petitioner had argued that that as per the said section, there is no valid classification between the persons who are in jail and the persons who are on bail or out of jail.
Further, it was pointed out that pointed out that as per second proviso to section 62(5), by reason of prohibition to vote under this provision, 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.
Therefore, the Petitioner claimed that this distinction in the law is not reasonable, and thus, violates Article 14 of the Constitution.
While submitting its case, the. Election Commission informed the court that the Supreme Court has already decided upon the validity of this provision in the case of Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors. In that case, the apex court had noted that:
'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.'
While taking these judgements on record, the court noted that the right to vote is neither a fundamental right nor a constitutional right. Rather, it is a right which is conferred by the statute.
'The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away', the court opined.
Therefore, the court upheld the validity of section 62(5) of the said Act by highlighting that right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute.
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