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Monday, July 22, 2013

Right to Vote & Right to Contest When arise = “A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.” - a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.

                         published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40561
              REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 3040-3041 OF 2004

The Chief Election Commissioner Etc.              … Petitioners

           Versus


Jan Chaukidar (Peoples Watch) & Ors.        … Respondents


                                    ORDER


   These are appeals by way of  Special  Leave  under  Article  136  of  the
Constitution against the common order dated 30.04.2004  of  the  Patna  High
Court in C.W.J.C. No.4880 of 2004 and C.W.J.C. No.4988 of 2004.

2.    The facts very briefly  are  that  Article  326  of  the  Constitution
provides that  the  elections  to  the  House  of  the  People  and  to  the
Legislative Assembly of every State shall be on the basis of adult  suffrage
and every person who is a  citizen  of  India  and  who  is  not  less  than
eighteen years of age on such date as may be fixed  in  that  behalf  by  or
under any law made by the  appropriate  Legislature  and  is  not  otherwise
disqualified under the Constitution or  any  law  made  by  the  appropriate
Legislature on the grounds of non-residence, unsoundness of mind,  crime  or
corrupt or illegal practice, shall be entitled to be registered as  a  voter
for any such election.  In accordance with Article 326 of the  Constitution,
Parliament has enacted the Representation  of  the  People  Act,  1950  (for
short ‘the 1950 Act’) for registration of voters at such  elections  to  the
House of the People and to the Legislative Assembly of every State  and  has
also enacted the Representation of the People  Act,  1951  (for  short  ‘the
1951 Act’) for the conduct of elections to the Houses of Parliament  and  to
the Houses of Legislature of each State.

3.    The word “elector” is defined in the  1951  Act  in  relation  to  the
constituency to mean a person whose name is entered in  electoral  rolls  of
the constituency for the time being in force and who is not subject  to  any
of the disqualifications mentioned in Section 16 of the 1950  Act.   Section
16(1)(c) of the 1950 Act provides that a person shall  be  disqualified  for
registration in an electoral roll if he is for the time  being  disqualified
from voting under the provisions of any law relating  to  corrupt  practices
and other offences in connection with elections.

4.    Section 4 of the 1951 Act lays down the qualifications for  membership
of the House of the People and one of the qualifications laid down  is  that
he must be an  “elector”  for  any  Parliamentary  constituency.  Similarly,
Section 5 of the 1951 Act lays down the qualifications for membership  of  a
Legislative Assembly of a State and one of the qualifications laid  down  is
that he must be an “elector” for any Assembly constituency  in  that  State.
Section 62 of the 1951 Act is titled “Right to vote” and it provides in sub-
section (5) that 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 proviso  to  sub-
section (5) of Section 62 of the 1951 Act, however,  states  that  the  sub-
section will not apply to a person subjected to preventive  detention  under
any law for the time being in force.


5.    Writ petitions C.W.J.C. No.4880 of 2004 and C.W.J.C. No.4988  of  2004
were filed in the  Patna  High  Court  contending  that  a  person,  who  is
confined  in  prison,  whether  under  a   sentence   of   imprisonment   or
transportation or otherwise, or is in the lawful custody of  the  police  is
not entitled to vote by virtue of sub-section (5) of Section 62 of the  1951
Act and accordingly is not an “elector” and is, therefore, not qualified  to
contest elections to the House of People or the Legislative  Assembly  of  a
State because of the provisions in Sections 4 and 5 of  the  1951  Act.   By
the impugned common order, the High Court accepted this  contention  in  the
writ petitions and held:

           “A right to vote is a statutory right, the Law gives it, the Law
           takes it away.  Persons convicted of crime are  kept  away  from
           elections to the Legislature, whether to  State  Legislature  or
           Parliament, and all other public elections.  The  Court  has  no
           hesitation in interpreting the Constitution and the Laws  framed
           under it, read together, that persons in the lawful  custody  of
           the Police also will not be voters, in  which  case,  they  will
           neither be electors.  The Law temporarily takes away  the  power
           of such persons to go anywhere near the election scene.  To vote
           is a statutory right. It is privilege to vote,  which  privilege
           may be taken away.  In that  case,  the  elector  would  not  be
           qualified, even if his name is on the electoral rolls.  The name
           is not struck off, but the qualification to be  an  elector  and
           the privilege to vote when in the lawful custody of  the  police
           is taken away.”



6.    Aggrieved, by the findings of the  High  Court,  the  appellants  have
filed these appeals.  We have heard learned counsel for the parties  and  we
do not find any infirmity in the findings of the High Court in the  impugned
common order that
a person who has  no  right  to  vote  by  virtue  of  the
provisions of sub-section (5) of Section 62  of  the  1951  Act  is  not  an elector and is therefore not qualified to contest the election to the  House of the People or the Legislative Assembly of a State.

7.    These civil appeals are accordingly dismissed.  No costs.

                                                       ..……………..……………………….J.
                                        (A. K. Patnaik)






                                 ...…………..………………………..J.
                                     (Sudhansu Jyoti Mukhopadhaya)

New Delhi,
July 10, 2013.




























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