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TMI Blog2022 (6) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... be raised before the Division Bench of the Delhi High Court in the case of PRAVEEN KUMAR CHAUDHARY ORS. VERSUS ELECTION COMMISSION OF INDIA ORS. [ 2020 (2) TMI 1643 - DELHI HIGH COURT] . Following the pronouncements in the cases of ANUKUL CHANDRA PRADHAN ADVOCATE SUPREME COURT VERSUS U.O.I. [ 1997 (7) TMI 651 - SUPREME COURT] , and S. RADHAKRISHNAN VERSUS UNION OF INDIA (UOI) AND ORS. [ 1999 (8) TMI 1013 - SUPREME COURT] , and a Division Bench decision of the Delhi High Court in the case of MANOHAR LAL SHARMA VERSUS UNION OF INDIA [ 2014 (2) TMI 1410 - DELHI HIGH COURT] , the Delhi High Court reiterated that sub-section (5) of Section 62 is constitutionally valid - It was held that Section 62(5) is constitutionally valid. The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved as stated hereinabove. Indisputably, the Applicants profess to exercise their right to vote in the capacity of the Members of the Legislative Assembly, which constitutes the electoral college for electing the Members of the Legislative Council under Article 171(3)(d) of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... college are put behind the bars with a view to deprive them of the opportunity to vote in the election so as to achieve a desired result. In such a situation, though the Section would be unassailable, yet the Action thereunder, is susceptible to challenge and correction in exercise of appropriate jurisdiction. In such an exceptional situation, the Court may be justified in issuing directions so that the custody of the members of the electoral college does not become a subterfuge for divesting them of their right to vote. In the case at hand, the Applicants have been in custody since long. No such motive of putting the Applicants behind the bar so as to prevent them from participating in the election process can be attributed, at least, at this length of time - Application dismissed. - BAIL APPLICATION NO.1787 OF 2022 WITH INTERIM APPLICATION NO.1734 OF 2022 IN BAIL APPLICATION NO.1021 OF 2022 - - - Dated:- 17-6-2022 - N.J. JAMADAR, J. Mr. Amit Desai, Senior Advocate with Mr. Kushal Mor, Mr. Gopalkrishna Shenoy, Mr. Taraq Sayyed, Mr. Rohan Dakshini, Ms. Pooja Kothari, Mr. Tejas Popat, Ms. Neha Sonawane i/by Rashmikant and Partners, for Applicant in BA 1787 of 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Applicants claim they have a constitutional duty to cast vote in the said election. The fact that the Applicants are incarcerated in connection with the aforesaid offence, cannot preclude them from discharging their constitutional duty. Since the learned Judge, PMLA, has negatived the plea of the Applicants qua the Rajya Sabha Election, recording a view on the construct of Section 62(5) of the Representation of the People Act, 1951, the Applicants are constrained to directly approach this Court by way of these Applications. 3. A limited Affidavit in Reply is filed by the Directorate of Enforcement Respondent No.1. The tenability of the Applications is assailed on the ground that the Applicants have not availed efficacious remedy of approaching the learned Judge, PMLA. Since the Applicants have prayed for bail, the interdict contained in Section 45 of the PMLA comes into play. Even otherwise, in view of the settled position in law that a right to vote is nothing more than a statutory right, and the Applicants are precluded from exercising the said right by a statute itself, the prayer of the Applicants does not deserve to be entertained. 4. At the outset, it is imperati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency 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 preventive detention under any law for the time being in force : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet to be tried and are very much entitled to the presumption of innocence, which is a cardinal principle of our criminal jurisprudence, they cannot be prevented from performing their constitutional duty. The term otherwise which appears in sub-section (5) of Section 62 is, thus, required to be construed ejusdem generis. Therefore, the Applicants deserve the relief of being escorted to the Vidhan Bhavan for casting the vote in the Maharashtra Legislative Council Election, as it would advance the cause of promoting the democratic values submitted Mr. Desai. 12. Mr. Vikram Choudhary, learned Senior Advocate, appearing for the Applicant in IA No.1734 of 2022, supplemented the submissions of Mr. Desai by more forcefully canvassing the submission that the matter is clearly in the realm of discretion of the Court. The embargo contained in sub-section (5) of Section 62 does not impinge upon the exercise of the said discretion. Any other view, according to Mr. Chaudhary, would militate against the fundamental principles of democratic polity. 13. In opposition to this, Mr. Anil Singh, learned Additional Solicitor General appearing for Respondent No.1, stoutly submitted that the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, as the learned Senior Advocates sought to rely upon a particular portion thereof, to lend support to their respective submissions. 5. There are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcome and upheld as subsisting the constitutional purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation a of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of fight and fair elections and facilitate maintenance of law and order which are the essence of democracy must, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person in prison result 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. Moreover, if the object is to keep persons with criminal background away from the election scene, a provision imposing a restriction on a prisoner to vote cannot be called unreasonable. 17. The validity of sub-section (5) of Section 62 was again sought to be questioned in the case of S. Radhakrishnan V/s. Union of India and Ors.W.P.(C) 1028 of 1990. Reiterating the view in the case of Anukul Chandra Pradhan (supra), the Supreme Court again declined to entertain the challenge. Para No.2 of the order reads thus : 2. The issue raised in this petition is no longer res-integra. In Anukul Chandra Pradhan V. Union of India and Ors. (supra), a three Judge Bench of this Court speaking through Verma, CJI (as His Lordship then was) examined the ambit and scope of Section 62(5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not apply with equal force to a person who is yet not charged, much less, convicted. It was further submitted that having regard to the composition of the electoral college, the aforesaid justification may not hold good in case of election to Legislative Council. 20. I find it rather difficult to accede to this submission. The Supreme Court has categorically held that the classification between the persons who are in custody and those who are not in custody, is a reasonable classification based on an intelligible differentia. The fact that the Supreme Court adverted to consequences which may ensue in the event every person who is incarcerated is permitted to exercise the right to vote, does not erode the worth of the principle on which the validity of sub-section (5) of Section 62 is upheld. 21. Mr. Desai then urged that there has been a development in electoral jurisprudence after the pronouncement in the case of Anukul Chandra Pradhan (supra). A right to vote is now not merely a statutory right, but has been elevated to the level of a constitutional right, though certainly not a fundamental right. According to Mr. Desai, this further development makes a significant diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise than as a detenue under the preventive detention law, is not entitled to vote at an election, the said prescription would govern the rights and duties of the Members of the Legislative Assembly as electors. 23. This propels me to the thrust of the submission on behalf of the Applicants that the Court is required to adopt an approach which advances the cause of democracy. According to the Applicants the Court ought to choose the alternative, which strengthens the democratic values and constitutional norms. 24. To bolster up this submission, Mr. Desai cited orders passed by the Supreme Court in the cases of Kalyan Chandra Sarkar V/s. Rajesh Ranjan @ Pappu Yadav and Anr. (2005) 3 SCC 311, Mohd. Shahabuddin V/s. State of Bihar Ors.(2007) 10 SCC 28, Mr. Nalin Soren V/s. State of Jharkhand Special Leae to Appeal (Cri.) No.5859 of 2012. and the orders passed by this Court in the cases of Ramesh Nagnath Kadam V/s. The State of Maharashtra and Ors.Cri. W.P.No.2638 of 2017 Dt. 14th July, 2017 and Ramesh Nagnath Kadam V/s. The State of Maharashtra and Ors. Cri.W.P. 4792 of 2019 dt. 1st October, 2019. 25. These orders were passed in a variety of matters like permitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansportation 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 the word 'shall' and therefor, is a mandatory proposition of law which this court is bound to follow, being the express exposition of law by the legislature. The Judgment of the Hon'ble the High Court of Orrisa in the case of Shri Ramesh Chandra Jena (supra), to the extent it allows a person subject to restriction of Sub-section (5) of Section 62 of the Act 1952 to vote, appears to be in per incurium and this court, in the backdrop of the express provision of law, feels unable to subscribe to the findings of the said judgment. 13. Applying Section 62(5) of the Representation of People Act to the factual matrix of the present case, it is clear that the petitioner cannot be allowed to cast his vote at the election to the Rajya Sabha since, he is in prison and in the lawful custody of the police. Further the proviso to the Section will not apply since he is not in preventive detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. The submission on behalf of the Applicants that the embargo is only on account of the factum incarceration and the moment the Court orders the release of the person or permits the casting of vote by coming out of prison, the embargo is lifted, appears attractive at the first blush. However, on a close scrutiny, the premise of the submission falls through. What the Applicants want the Court to do is to order release of the Applicants to cast vote in the face of an express prohibition. To this end, the Applicants appeal to the judicial discretion of the Court. The edifice of this appeal is rested on the proposition that participating in voting by the Applicants would strengthen the democracy. 31. It would be suffice to note that the concept of democracy transcends electoral democracy . Purity of electoral process and probity of the participants therein, are also of equal significance in strengthening the democratic principles. One of the objects of the prohibition envisaged by sub-section (5) of Section 62 is stated to be arresting the criminalization of politics. I am, therefore, not inclined to accede to the broad proposition that permitting the persons (who are otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues, the Court may be required to summon the inherent powers to remedy the malady. The Court cannot be said to be completely denuded of the authority to exercise such jurisdiction. An illustrative case would be, where on the eve of the election, a number of members of the electoral college are put behind the bars with a view to deprive them of the opportunity to vote in the election so as to achieve a desired result. In such a situation, though the Section would be unassailable, yet the Action thereunder, is susceptible to challenge and correction in exercise of appropriate jurisdiction. In such an exceptional situation, the Court may be justified in issuing directions so that the custody of the members of the electoral college does not become a subterfuge for divesting them of their right to vote. In the case at hand, the Applicants have been in custody since long. No such motive of putting the Applicants behind the bar so as to prevent them from participating in the election process can be attributed, at least, at this length of time. 35. For the foregoing reasons, in my considered view, even the alternative prayer to exercise the discretion so as to remove the embargo a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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