TaxTMI 
TaxTMI 
2014 (2) TMI 1410
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....le (Amendment and Validation) Act, 2013. (2) It shall be deemed to have come into force on the 10th day of July, 2013. 2. Amendment of Section 7.--In the Representation of the People Act, 1951 (43 of 1951) (hereinafter referred to as the principal Act), in Section 7, in clause (b), after the words " or Legislative Council of a State", the words "under the provisions of this Chapter, and on no other ground" shall be inserted. 3. Amendment of Section 62.--In Section 62 of the principal Act after the proviso to sub-section (5), the following proviso shall be inserted, namely-- Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector. 4. Validation.--Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the Representation of the People Act, 1951 (43 of 1951), as amended by this Act, shall have and shall be deemed always to have effect for all purposes as if the provisions of this Act had been in force at all material times. 2. The constitutional validity of the Act has been challenged ....
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.... classification. It is well known that for the conduct of free, fair and orderly elections, 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 the 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 moveme....
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....Article 190(3)(a) provides that if a Member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in Clause (1), his seat shall thereupon become vacant. This is the effect of a disqualification under Articles 102(1) and 190(1) incurred by a Member of either House of Parliament or a House of the State Legislature. Accordingly, once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision as in sub-Section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the Constitution. 33. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications....
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....n appeal against the order of conviction won't relieve the convict from disqualification. 7. Learned ASG also drew our attention to Section 62 of the RP Act of 1951 which deals with 'Right to Vote' and sub-section (5) thereof provides 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 police shall not have a right to vote. 8. The submission of the learned ASG is that Section 62 of the RP Act of 1951, as interpreted by the Patna High Court and the Supreme Court in Jan Chaukidar (Peoples Watch) & Ors.'s case (supra), had serious consequences and wide ramifications leaving room for serious abuse. It was, thus, urged that keeping in view the exigency of the situation, the Parliament passed the impugned Amendment and Validation Act, 2013, and by virtue of it, a proviso was inserted after the proviso to sub-section (5) to Section 62, to the effect that "by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector." To support his submission, an illustration was given that any candidate who....
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....alidation Act, 2013 by virtue of the power conferred under Article 327 read with Entry 72 of the Constitution. The said provisions of the Constitution are, for the sake of convenience, reproduced here-in-below: Article 327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all the matters, relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Union List/List-I: .... 72. Elections to Parliament, to the Legislatures of States and to the Offices of President and Vice-President; the Election Commission. 12. We may also notice here certain Acts passed under this Entry, which are as follows: a) The Representation of the People Act, 1950; b) The Representation of the People Act, 1951; c) The Delimitation Act, 1972; d) The Presidential and Vice-Presidential Elections Act, 1952; and e) Some portions of other Acts, namely, Government of the Union Territo....
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....islation. If Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (emphasis supplied) 16. In K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, (1954) SCR 1, and in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr., 1962 Supp. (1) SCC 156, it has been held that "The doctrine of Colourable Legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. We will, therefore, concentrate on the legislative competence of Parliament to enact the impugned legislation. If the Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive which persuaded the Parliament into passing the Act would be of no....
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....xcise, (2004) 3 SCC 48, the Supreme Court held that a validating Act removes actual or possible voidness, disability or other defect by confirming the validity of anything which is or may be invalid. 23. Through the impugned Validation and Amendment Act, 2013, it is apparent, the Parliament has sought to widen the definition of "Elector", which is more in the nature of curing the defects pointed out by the Court(s) and to obviate any difficulties that have arisen during the course of implementation of the provisions of the RP Act of 1951, post the judgment of the Supreme Court. iii) Right to vote is not a constitutional right; it is only a statutory right. 24. It is trite that 'right to vote' is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by the people of India. Section 62(5) of the RP Act of 1951 explicitly states, "No person shall vote at any election, if he is confined in a prison ... or is in the lawful custody of the police. The constitutional validity of said Section was upheld by the Supreme Court in Ankul Chandra Pradhan, Advocate, Supreme Court v. Un....
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....fore, held to be not available. 26. Through the impugned Amendment and Validation Act, 2013, the Parliament seeks to amend the definition of the term "Disqualified' as defined under Section 7(b) of the RP Act of 1951 and incorporated proviso to sub-Section (5) of Section 62, which deals with "right to vote". The impugned Amendment and Validation Act, 2013 does not deal with disqualification on account of conviction under certain offences as prescribed under Chapter-III of Part-II of the RP Act of 1951. The Supreme Court dealt with the case of disqualification incurred by an individual due to conviction after trial of the offences, for which, he is charge-sheeted. Para 32 of the judgment in Lily Thomas's case (supra) reads as follows: 32. The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as Member of either House of Parliament or as a Member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting Member of a House of Parliament or a House of the State Legislatu....
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....f 1951 was also an enactment, which was enacted by the Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of the List-I of the Constitution. 31. The above leaves no room for doubt that the Constitution recognized the need for changes in law relating to elections from time to time and entrusted the Parliament with the responsibility as also the requisite power to bring in legislative measures as and when required in such respect, which would include the power to amend the existing law. 32. In Hari Prasad Mul Shankar Trivedi v. V.B. Raju (1974) 3 SCC 415, the Apex Court held as under: 24.... Article 327 gives full powers to Parliament subject to provisions of the Constitution to make laws with respect to all matters relating to or in connection with election including preparation of electoral rolls. 33. Further, the Parliament has the power, rather an exclusive one, under Article 246 of the Constitution to make laws with respect to any of the matters enumerated in the Union List of the Schedule-VII. In exercise of such a power, the Parliament has enacted the impugned Amendment and Validation Act, 2013 and the same cannot be held to be beyond....
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.... your nomination paper notwithstanding the fact that you are in lawful custody of the police. Because being in the lawful custody of the police does not mean that you are convicted of an offence, does not mean that you are a criminal, does not mean that you are subject to any disqualification under Section 16 of the 1950 Act.... So, even though I may not be entitled to vote under Section 62(5), I do not cease to be an elector, which means, I can still file my nomination paper. You know very well that there are several instances where several political parties put up candidates who may be in prison but who are not convicted and undergoing trial because the rule of law in any progressive democracy is that you are innocent till you are proved guilty.... Therefore, several political parties have actually had candidates who had been in jail but who had actually filed their nomination paper and have got elected while being in jail.... B) Leader of Opposition's statement: Suppose police picks up somebody. And it is not that it is uncommon; it has happened in the past whereby introducing some action people have been debarred and disabled from contesting. Therefore, are we going to ....