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TMI Blog2016 (6) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... ower 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 el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghav, Dy. GC for the respondents. ORDER By this petition, following prayers have been made:- (1) By issuing an appropriate writ, or order or direction, respondent may kindly be directed to allow petitioner to participate in Rajaya Sabha Election and cast his vote which is scheduled on the 11.6.2016 by escorting him in custody for the purpose of participating in casting vote in the Rajaya Sabha Election. (2) The Hon'ble Court may kindly pass such other order or a direction, which it may deem just, proper and expedient in the facts and circumstances of the present case. Any other appropriate relief to which the appellant/petitioner is found entitle may also be granted. 2. It is submitted by the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. On the other hand, Learned Additional Advocate General Shri B.N. Sandhu has submitted that Chief Election Commission of India and the Secretary Rajasthan State Legislative Assembly are necessary parties in the present petition and without there being made parties the petition is not maintainable and deserves to be dismissed. It is also submitted that in view of Section 62 (5) of Representation of People Act, 1951, the petitioner is not entitled to vote since, he is confined in prison and is in lawful custody of the police. Further, since he is not in preventive detention, proviso to Section 62(5) will not apply. In support of his contention, Learned AAG has placed reliance on Anukul Chandra Pradhan Advocate v. Union of India and others ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Union Territories, the conduct of elections to the Parliament and Legislature of each State, the qualifications and disqualifications for membership of these Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. 8. A perusal of these two Acts 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5). 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 in this sub-section shall apply to a person subjected to preventative detention under any law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector. 10. The Judgment of the Hon'ble Apex Court in Anukul Chandra Pradhan v. Union of India and others (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, this restriction is not applicable to a detenue under any law relating to preventative detention. Sub-Section (5) of Section 62 of the Act 1951 uses th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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