2017 (7) TMI 1422 - HC - Indian Laws

Right to vote - Section 62 (5) of the Representation of the People Act, 1951 - HELD THAT - It is no doubt true that the petitioner is facing about 10 cases. It is also not in dispute that as on date the petitioner is not convicted of any of the offence / charges levelled against him. Mr. Chavan relied on Section 62(5) of the R.P. Act. Section 62 (5) lays down 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; Provided that nothing this subsection shall apply to a person subjected to preventive detention under any law for the time being in force; Provided further that by reason of the prohibition to vote under this subsection, a person whose name has been entered in the electoral roll shall not cease to be an elector. The Presidential elections are scheduled on 17.07.2017 and the papers are produced before me today in the afternoon session. In view of the limited time at my disposal, I am prima facie of the opinion that Section 62 of the R.P. Act is not applicable to the Presidential Elections. Presidential Election is governed by the Presidential and Vice Presidential Elections Act, 1952. Mr. Chavan did not point out any provision under the R.P. Act that prohibits the undertrial to cast vote in the Presidential Election. Petitioner is permitted to cast vote for Presidential Elections 2017, scheduled on Monday i.e. 17th July, 2017 - Jail Superintendent, Byculla and Commissioner of Police, Mumbai are directed to take appropriate steps for producing him at the place of polling viz Central Hall, 4th Floor, Vidhan Bhavan, Backbay Reclamation, Mumbai 400 032 with sufficient police escort for the purpose of casting vote for the Presidential Elections 2017. They shall ensure that petitioner is taken to the Polling Station before 10.00 a.m. positively. After casting vote, he shall be immediately taken back to Byculla Jail. Petition disposed off.

Summary

Issues Involved:
1. Right of an undertrial to cast vote in Presidential Elections.
2. Applicability of Section 62(5) of the Representation of the People Act, 1951.
3. Relevance of previous judicial decisions on similar matters.
4. Conditions under which an undertrial may be allowed to vote.

Issue-wise Detailed Analysis:

1. Right of an undertrial to cast vote in Presidential Elections:
The petitioner, an undertrial, sought permission to cast his vote in the Presidential Election scheduled on 17th July 2017. The petitioner argued that since he was not convicted or served with any detention order, he should be allowed to vote. The court considered precedents where undertrials were permitted to vote, such as the case of Mohd. Shahabuddin, where the Supreme Court allowed an undertrial to vote in the Vice-Presidential election under police escort.

2. Applicability of Section 62(5) of the Representation of the People Act, 1951:
The respondents argued that under Section 62(5) of the Representation of the People Act, 1951, a person confined in prison is not entitled to vote. However, the court noted that Section 62(5) of the R.P. Act is not applicable to Presidential Elections, which are governed by the Presidential and Vice Presidential Elections Act, 1952. The court observed that the respondents did not point out any provision under the R.P. Act that prohibits an undertrial from voting in the Presidential Election.

3. Relevance of previous judicial decisions on similar matters:
The respondents cited several decisions, including the cases of Suresh Kalmadi, Tanaji s/o Keshavrao Bhoite, and K. Ananda Nambiar, to argue against the petitioner's request. However, the court distinguished these cases from the present one. For instance, in the case of K. Ananda Nambiar, the Supreme Court held that the rights of Members of Parliament are not constitutional or fundamental rights in the strict sense. The court found that these decisions were not applicable to the petitioner's situation, as he was neither convicted nor detained under any preventive detention order.

4. Conditions under which an undertrial may be allowed to vote:
The court concluded that the petitioner should be allowed to vote, subject to conditions. It directed the Jail Superintendent and the Commissioner of Police to take appropriate steps to ensure the petitioner's presence at the polling station with sufficient police escort. The petitioner was required to deposit Rs. 5,000 towards escort charges. The court also directed the Registrar (Judicial) to communicate the order to the Election Commission of India and the Principal Secretary, Maharashtra Legislature Secretariat.

Conclusion:
The court allowed the petition, permitting the undertrial petitioner to cast his vote in the Presidential Election scheduled on 17th July 2017. The court emphasized that the decision was made considering the specific circumstances of the case and the precedents where undertrials were allowed to vote under police escort. The petition was disposed of with specific directions to ensure the petitioner's presence at the polling station and his immediate return to custody after voting.