TaxTMI 
TaxTMI 
2020 (2) TMI 1643
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....epresentation of the People Act, 1951 as violative of the basic structure of the Constitution; (B) Issue a writ of mandamus or any other writ staying operation of Section 62(5) of Representation of the People Act, 1951 pending the hearing and disposal of the present Writ Petition; (C) Issue a writ of mandamus or any other writ directing the respondents to ensure that they should provide facilities and amenities to prisoners to cast their vote from jail premises pending the hearing and disposal of the present Writ Petition; (D) Pass any such directions or order which this Hon'ble Court deems fit and proper in the facts and circumstances of the above mentioned case." 5. Having heard the learned counsel for the parties and looking to the facts and circumstances, it appears that several grievances have been ventilated by the petitioners about Section 62(5) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act‟) and submitted that the said provision of the Act is violative of the basic structure of the Constitution. For ready reference, Section 62 (5) of the Act reads as under:- "62. Right to vote.- (....
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....icle 14 and basic structure of the Constitution of India. 7. Learned counsel appearing for the respondent/Election Commission of India submitted that this issue has already been raised before the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors, (1997) 6 SCC 1, paragraphs 3 to 6, 8 and 12 thereof reads as under:- "3. The argument of Shri Rajinder Sachar, the learned counsel for the petitioner, is that sub-section (5) of Section 62 of the Act violates Articles 14 and 21 of the Constitution. The submission is that the expression "or otherwise" in sub-section (5) of Section 62 has a very wide connotation and denies voting rights 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 chargesheet 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 Article 14 o....
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....s, 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 force and infrastructure facilities are additional factors to justify the restrictions imposed by sub-section (5) of Section 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. Mo....
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....ersuaded to take a different view. This writ petition, therefore, fails and is dismissed. No costs." 10. In view of the aforesaid decision also Section 62(5) of the Act is constitutionally valid and right to vote is not a fundamental right but it is a statutory right and it can be made limited by the statute. 11. The Hon‟ble Supreme Court in Mahendra Kumar Shastri vs. Union of India & Anr., (1984) 2 SCC 442 held as under:- "We do not find any merit in the contentions urged by the petitioner in the writ petition. The disability which is imposed under Section 62(5) of the Representation of the People Act is equally applicable to all persons similarly situate mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing peoples' representatives and there is no arbitrariness or discrimination involved. Rule is discharged and the writ Petition is dismissed." 12. A Division Bench of this Court in a judgment reported in Manohar Lal Sharma vs. Union of India,2014 (141) DRJ 157 in paragraph 25 and 26 held as under:....