Judgment S. B. Sinha, J. 1. In this writ application the question as to whether the persons, who are in custody having been convicted of an offence or are undertrial prisoners, have any right to exercise their franchise under the provisions of Representation of People Act, 1951 (hereinafter called and referred to as the said Act), arises for consideration. 2. In this public interest litigation the petitioner has contended that like any other citizens of India a person who has been convicted of an offence or is a under-trial prisoner has a fundamental right to cast his vote in terms of Article 19 (1) (a) of the Constitution of India. 3. The stand of the Respondents on the order hand, is that in view of the Sec.62 (5) of the said Act, such a right has expressly been taken away. Accord to the respondents the Supreme Court in Mahendra Kumar Shastri v. Union of India and another, reported in AIR 1983 page 2 has upheld the constitutianality of the aforementioned provision. 4. Mr. K. P. Verma, through whom this writ application has been filed and who has appeared in person, submitted that a right to vote is a fundamental right as guaranteed under Article 19 (1) of the Constitution of india inasmuch as only by reason thereof a person can expresses his opinion with reg to the fitness of the candidates to represent of the people. According to mr. Verma, therefore a right to vote should be considered to be the means of expressing ones view, so as to bring it within the purview of Article 19 (1) (a) of the Constitution of India. In this connection, Mr. Verma has strongly relied up on a constitutional Bench decision of the Supreme Court in smt. Maneka Gandhi V/s. Union of India and another, reported in 1978 Supreme court page 597, wherein it has been held that passport is the means to enforce the fundamental right of a person to travel abroad. 5. Mr. Verma, has further pointed out that by reason of the provisions as contained in Sec.62 (5) of the said Act, only such persons who came within the purviso thereof are prohibited from contesting an election. 6. Mr. 5. Mr. Verma, has further pointed out that by reason of the provisions as contained in Sec.62 (5) of the said Act, only such persons who came within the purviso thereof are prohibited from contesting an election. 6. Mr. Verma, submitted that if a person who although is convicted or is an under-trial prisoner is not precluded from contesting an election, the question of such a persons ceasing to have any right to vote does not arise. According the learned counsel Sec.62 (5) of the said Act, is, therefore not only violative of Article 19 (1) (a) of the Constitution of India but also being inconsistent with the provisions of Sec.8 of the said Act, the same is liable to be struck down. 7. Mrs. Renuka Sharma, learned standing counsel, Central Government, on the ether and hand submitted that the right to vote is not a fundamental right but a right created under the said Act itself. According to the learned counsel, therefore, sub-section 5 of Sec.62 of the said Act having expressly taken away the right of a person to cast his vote, such a provision cannot be said to be unconstitutional. 8. The learned counsel in this connection has relied upon in Mahendra kumar V/s. Union of India, reported in AIR 1983 SC page 299 and in Kabul singh V/s. Kimdan Singh and others, reported in ATR 1970 SC page 340 9. In view of the rival contentions aforementioned, the only question which arises for consideration is as to whether sub-section 5 of Sec.62 of the Representation of People Act, 1951 is ultra vires the constitution of india or not. 10. The said Act was enacted for conduct of election to the houses of parliament and to the House or Houses of the legislation of, each State, the qualification and disqualification for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputed arising out of or in connection with such elections. 11. Part I of the said Act, inter alia deals with the interpretation clauses. Part 2 deals with qualification and dis-qualification of membership of parliament. Sec.8 of the said Act which appears in this part read as follows : "8. 11. Part I of the said Act, inter alia deals with the interpretation clauses. Part 2 deals with qualification and dis-qualification of membership of parliament. Sec.8 of the said Act which appears in this part read as follows : "8. Disqualification on conviction for- certain offences (1) A person convicted of an offence punishable under :- (a) Sec.153 (a) (offence of promoting enmity between different groups on ground of religion, race, place of him residence, language etc. Sec.8 of the said Act which appears in this part read as follows : "8. Disqualification on conviction for- certain offences (1) A person convicted of an offence punishable under :- (a) Sec.153 (a) (offence of promoting enmity between different groups on ground of religion, race, place of him residence, language etc. , and doing acts prejudicial to maintenance of harmony) or Sec.171 (E) (office of bribe or Section 171-F (office of undue influence or personation at an election)or sub-section (1) or sub-section (2) of Sec.376-D (offences relating to rape) or Sec.498-A (offence of cruelty towards a woman by husband or relative of a husband) or subsection (2)or sub-section (3) of Sec.505 (offence of making statement creating or promoting on hatred or ill-will between clauses or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860), or (b) the protection of Civil Rights Act, 1955 (22 cf 1955) which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability therefrom, or (c) Sec.11 (offence of importing or exporting prohibit goods)of the Customs Act, 1962 (52 of 1962), or (d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to declaring with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified placed of the Unlawful Activities (prevention) Act, 1967 (37 of 1967), or (e) The Foregn Exchange (regulation) Act, 1973 (46 of 1973) or (f) The Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1986), or (g) Sec.3 (offence of committing terrorist acts) or Sec.4 (offece of committing disruptive activities) of the Terrori and disruptive Activities (Preventive Act, 1987 (28 of 1987) or, (h) Sec.7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious Institutions (Prevention of misuse) Act, 1988 (41 of 1988), or (i) Sec.125 (offence of promoting enmity between classes in connection with the election) or Sec.135 (offence of removal)of ballot papers from polling stations) or Sec.13 (offence of both capturing) or clause (1) of sub-section (2) of section 136 (offence of fraudulently defacing or destroying any nomination paper) of this act, shall be disqualified for a period of six years from the date of such conviction. (2) A person convicted for the contravention of (a) any law providing for the prevention of hoarding or profitiaring, or (b) any law relating to the adulteration of food or drugs, or (c) any provisions of the Dowry Prohibition Act, 1961, (28 of 1961), or (d) any provisions of the commission of sati (Prevention) Act, 1987 (3 of 1988), and sentenced to imprisonment for not less than six months shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release ). (4) Notwithstanding anything (in sub-section (1) sub-section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence until that appeal or application is disposed of by the court. " The aforementioned provision, therefore, provides for disqualification of a citizen to contest an election for a certain period, irrespective of the fact as to whether he is in custody or not. 12. Part 3 deals with notification of general election. Part 4 deals with an Administrative Machinery for the conduct of election. Part 5 deals with conduct of election. Part 6 deals with the matter relating to disputes regarding election. 13. Section 62 of the said Act reads as follows : "right to vote. (1) No person who is not, and except 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 in Sec.16 of the Representation of the People Act, 1950, (43 of 1950 ). (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred in Sec.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, bis 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 that 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 sentence of imprisonment or transportation or otherwise, or is in the lawful custody or the Police ; provided that nothing in this sub-section shall apply to a person subject to preventive detention under and law for the time being in force. " 14. The question which arises for consideration is as to whether right to vote is a fundamental right or a statutory right. A right to vote has been created specifically by reason of sub-section (1) of Sec.62 of the said Act, 1952. The right to vote does not find place in any of the clauses contained in article 19 of the Constitution of India. 15. From a perusal of the Sec.62 (1) of the said Act, it would appear that the same is subject to the condition that the name of the voter has been entered in the electoral roll of any constituency. Right to voter, thus is not an absolute right nor can it be said to be a fundamental right within the meaning of Article 19 of the Constitution. Right to vote is thus merely a statutory right. A right contained under statute, can, therefore, be taken away under the statute itself. Whereas sub-section 1 of Sec.62 of said Act creates such a right subject to the conditions maintained therein, the same has been taken away in relation to the persons specified in sub-section 5 thereof. 16. There cannot be any doubt that the persons who came within the purview of sub-section 5 of Sec.62 of the Act form one class by themselves. 16. There cannot be any doubt that the persons who came within the purview of sub-section 5 of Sec.62 of the Act form one class by themselves. It is not and cannot be the case of the petition on that the classification so made in terms of Sec.62 (5) of the said Act is not based on a reasonable differentia and for in doing so, there was no discernible reasons therefore. In this connection it may be mentioned that whereas a person who has been convicted of an offence whether under a sentence of imprisonment or transportation or otherwise has been prohibited from casting his vote, such a provision does not apply in relation to the persons who have been detained under the preventive detention laws. 17. Article 19 (1) (a) of the Constitution merely guarantees a right of freedom of speech of expression. A right guaranteed to a citizen the right to freedom of speech of expression although is wide in nature, the same in my opinion does not embrace within its fold a right or citizen to exercise his franchise which has been specifically created under the provisions of the said act and not under the provisions of the Constitution. There was, thus no intention on the part of the makers of the constitution to include the right of a citizen to exercise his franchise within the purview of Article 19 of the constitution. 18. The importance of a persons right to vote cannot be minimised. Such a right has been held to be a very valuable right from time is immemorial. 19. A freedom of speech of expression may be extended to the right to express ones views in any matter of public interest or any other matter dealing with the public law etc. Such a right to exercise ones franchise, however, can be and has specifically been excluded by reason of sub-section 5 of Sec.62 of the said Act. 20. In Kabul Singh V/s. Kundan Singh and others, reported in AIR 1970 sc page 340 the Supreme Court has clearly held that such a right is purely a statutory one. It is, therefore, clear that right to vote is not a fundamental right guaranteed to a citizen under Article 19 of the Constitution of India. 21. Sub-section 5 of Sec.62 of the Act has been enacted as a matter of public policy. It is, therefore, clear that right to vote is not a fundamental right guaranteed to a citizen under Article 19 of the Constitution of India. 21. Sub-section 5 of Sec.62 of the Act has been enacted as a matter of public policy. Aright created under sub-section 1 of Sec.62 of the said Act has expressly been taken away in respect of the persons who clearly fall within the purview of sub-section 5 thereof. Thus, a person who has been confined in a prison whether under a sentence of an imprisonment or transportation or otherwise or in the lawful custody of the police is debarred from exercising his right of franchise. The words confined in a prison and in the lawful custody of the police read together with the words "or otherwise" occurring after the sentence whether under a sentence or imprisonment or transportation" are significant. The word "otherwise" is of wide import. 22. The said word read in conjunction with the words" he is confined in a prison and in the lawful custody of the Police" leaves no manner of doubt whatsoever that a person who is in lawful custody i e. whether in police custody or Judicial custody or whether after conviction or before conviction would come within the mischief of sub-section 5 of Sec.62 of the said Act. 23. As indicated hereinafter, such persons from class by themselves. In that view of the matter, in my opinion, the said provisions cannot also be said to be a ultra vires Article 14 of the Constitution. 24. In Mahendra V/s. Union of India and another, reported in 1983 SC page 299 the Supreme Court by a very short order has stated the law thus : "we do not find any merit in the contentions urged by the petitioner in the writ petition. The disability which is imposed the under section 62 (5) of the Representation of People Act is equally applicable to all persons similarly situated mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such elections. The provisions is reasonable and in public interest to maintain purity in electing people representatives and there is arbitrariness or discrimination involved". 25. It has however, been submitted by Mr. The provisions is reasonable and in public interest to maintain purity in electing people representatives and there is arbitrariness or discrimination involved". 25. It has however, been submitted by Mr. Verma that a person who has been named under Sec.62 (5) of the said Act is not necessarily prevented from contesting an election as it would be evident from Sec.8 thereof. The contention of Mr. Verma may be correct. But in the said provision has been held to be reasonable, in public interest and to maintain purity in election of peoples Representatives. The Supreme Court has further held that there was no arbitrariness or discrimination in the said provision even if a person is entitled to contest an election while he is in police custody or in judicial custody, will not by itself render the sub-section 5 of Sec.62 of the said Act unconstitution on that ground alone. The right to contest an election and the right to vote are two different rights. 26. It is true that a person can contest an election interested if he has the requisite qualification in that regard and if he is a votor for under section 62 of the said Act but only because such a person has only been prohibited from exercising his right to vote because he is in custody, would not necessarily mean that he is also be debarred from contesting an election. 27. In that view of the matter, in my opinion, Sec.62 (5) of the Act cannot be said to be unconstitutional. 28. There is thus no merit in this application which is accordingly dismissed. Regard being had to the facts and circumstances of the case, there will be no order as to costs. A copy of this order may be handed over to Mr. K. P. Verma, Advocate. Petition dismissed.