Voting rights in lawful custody remain subject to statutory bar; courts cannot override an express prohibition absent exception.

Section 62(5) of the Representation of the People Act, 1951 bars persons confined in prison or in lawful police custody from voting, subject only to the preventive detention exception. The Bombay High Court treated the provision as constitutionally valid and held that the right to vote in the relevant electoral college remains subject to statutory regulation. It further held that courts cannot grant temporary bail or escort arrangements to override an express legislative prohibition, unless a legally cognisable exception or exceptional abuse of process is shown, which was not established here.

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Issues: Whether persons in lawful custody could be permitted to vote in the Legislative Council election despite the prohibition in Section 62(5) of the Representation of the People Act, 1951, either by release on temporary bail or by being escorted to the voting venue.

Analysis: The right to vote in the concerned election was regulated by the Representation of the People Act, 1951. Section 62(5) contains a clear interdiction against voting by a person confined in prison or in lawful custody of the police, subject only to the limited exception of preventive detention. The provision was held constitutionally valid in earlier authority, and the classification between persons in custody and those outside custody was treated as a reasonable classification having a rational nexus with the object of maintaining probity in elections and preventing criminalisation of politics. The Court further held that even if the right to vote is regarded as a constitutional right in the relevant electoral college, it remains subject to statutory regulation. Judicial discretion cannot be exercised to grant relief that would directly override an express statutory bar, except in an exceptional case where custody itself is shown to be a subterfuge to defeat the electoral process, which was not the situation here.

Conclusion: Persons in lawful custody were not entitled to be released or escorted for the purpose of voting, and the statutory embargo under Section 62(5) could not be lifted by the Court in the circumstances of the case.

Ratio Decidendi: Where a statute expressly prohibits voting by a person in lawful custody, courts cannot use discretionary power to permit voting in the absence of a legally cognisable exception or exceptional abuse of process.

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