2016 (6) TMI 1446 - HC - Indian Laws

Legislator denied voting in custody for Rajya Sabha Election under Representation of People Act

Banwari Lal Kushwaha Versus State of Rajasthan & Ors.

The court dismissed the petition of an elected Legislative Assembly representative seeking permission to vote in the Rajya Sabha Election while in ... Right to vote - Seeking permission to petitioner to participate in Rajaya Sabha Election and cast his vote - HELD THAT:- A perusal of tpreamble to the Representation of the People Act 1950 and Preamble to the Representation of the People Act 1951 will go to show that provisions have been made in general terms and where the legislature intended to make specific provisions in respect of any of the Houses of the Parliament or the State Legislatures or in respect of any of the matters dealt with in these Acts, such provisions have been made expressly. Section 59 of the Act of the 1951 affords a good example of it. Main Section delegates power to provide for the manner of ballot where as the proviso makes a special provision in respect of the election of the Council of States and says that votes at an election to fill seats in the Council of States shall be given particularly by open ballots. Thus, interpreting the provisions of these two Acts, we have to keep in mind whether the provision is cast in general terms or in specific terms. If the provision is in general terms, it should be construed as regulating the whole subject, which it seeks to deal with. Section 62 of the Act 1951, deals with the Right to Vote. It refers to constituency and not any particular election. Therefor, the provision should be taken to be general and regulating 'Right to Vote' at all elections whether they are to the House of People or for the Council of States or a Legislative Assembly or a Legislative Council. As such the provisions of Sub Section (5) of Section 62 of the Act 1951 are equally applicable to an eligible voter who wishes to cast vote at an election to the Council of State. Therefore, a person who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in lawful custody of the police cannot be allowed to vote at an election to the Council of States - Applying Section 62(5) of the Representation of People Act to the factual matrix of the present case, it is clear that the petitioner cannot be allowed to cast his vote at the election to the Rajya Sabha since, he is in prison and in the lawful custody of the police. Right of a member to participate in the proceedings of the legislative assembly is a matter relating to proceeding of the house and it is not regulated by the law relating to the elections. Additionally, Chief Election Commission of India and Secretary Rajasthan State Assembly are necessary parties in the present petition and they are not made party by the petitioner. On this count also, the present petition deserves to be dismissed. Petition dismissed. Issues:- Right of a confined individual to vote in an election while in custody pending trial.- Interpretation of Section 62(5) of the Representation of People Act, 1951 regarding voting rights of individuals in prison.- Applicability of specific provisions in election laws to different types of elections.- Requirement of making necessary parties in a petition challenging electoral procedures.Analysis:1. The petitioner, an elected representative of the Legislative Assembly, sought permission to participate in the Rajya Sabha Election and cast his vote while in custody pending trial for serious offenses. The petitioner argued that since he had not been convicted and his imprisonment was pretrial, he should be allowed to exercise his right to vote, citing constitutional rights and precedents where similar permissions were granted.2. The Additional Advocate General contended that the petitioner, being in lawful custody, was not entitled to vote as per Section 62(5) of the Representation of People Act, 1951. Referring to a Supreme Court judgment, it was argued that the petitioner did not fall under the exception for preventive detention, thus disqualifying him from voting.3. The court examined the provisions of the Representation of People Acts of 1950 and 1951, highlighting their comprehensive nature in regulating various aspects of elections. It emphasized the importance of distinguishing between general and specific provisions within the Acts, particularly in relation to voting rights and election procedures.4. The court analyzed Section 62(5) of the Act of 1951, which explicitly prohibits individuals in prison or police custody from voting in elections, except for those under preventive detention. Citing a Supreme Court judgment upholding the constitutionality of this provision, the court concluded that the petitioner, being in custody, was ineligible to vote in the Rajya Sabha Election.5. Addressing the petitioner's reliance on a judgment allowing participation in legislative assembly proceedings, the court differentiated between matters of electoral rights and legislative proceedings, asserting that the former is governed by specific election laws. It emphasized the importance of including necessary parties, such as the Chief Election Commission and State Assembly Secretary, in petitions challenging electoral processes.6. Ultimately, the court dismissed the petition, stating that the petitioner could not be granted the requested directions due to the clear provisions of the law disqualifying individuals in custody from voting in elections. The court upheld the mandatory nature of Section 62(5) and emphasized the statutory nature of the right to vote as determined by previous judicial interpretations.