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2011 DIGILAW 225 (KER)

A. K. Balakrishnan Nair v. Union Of India

2011-02-28

ANTONY DOMINIC, J.CHELAMESWAR

body2011
JUDGMENT :- J.Chelameswar, C.J. The Writ Petition is filed with the prayer as follows: "It is therefore prayed that this Hon'ble Court may be pleased to issue a writ of mandamus or other appropriate writ, order or direction in the nature of a writ, to the respondents to ensure that no qualified person who has completed eighteen years of age is denied the right to vote." 2. The writ petition is purportedly filed in public interest. The substance of the petitioner's grievance is that while on one hand Article 326 declares that elections to the house of People and Legislative Assembly of every State shall be on the basis of adult suffrage, i.e., every person who is a citizen of India and who is not less than 18 years of age shall be entitled to be a registered voter at any such election, a large number of youngsters who answer the said prescription on the date of the election are not permitted to participate in the election process in this country. The petitioner knows that such situation is brought about by the provisions of the Representation of the People Act, 1950; more specifically Section 14(b) of the Act. The petitioner believes that what is guaranteed by the Constitution is snatched away by the Representation of People Act. By way of an 'illustration' the petitioner stated in the writ petition as follows: "Illustration:- A bye election is to be conducted in February 2012. The revision of the electoral roll is taken up in November 2011. The polling date is 05.02.2012. A man born on 02.01.1992 is not able to vote though he is nineteen years, one month and four days old on the polling day because he had not completed eighteen years on 01.01.2011. This is a blatant violation of the spirit of the Constitution." 3. According to the petitioner, the consequence of such an anomaly is as follows: "I submit that the matter is of tremendous, in fact incalculable, national importance. Even a few votes may be sufficient to tilt the balance from one candidate to another. In fact, a single vote may sometimes be capable of changing the very complexion of a Government. Votes are intimately connected with the weal and woe of crores of people because they decide the nature and policies of the Government,and they in turn, decide the day-today lives of the people. In fact, a single vote may sometimes be capable of changing the very complexion of a Government. Votes are intimately connected with the weal and woe of crores of people because they decide the nature and policies of the Government,and they in turn, decide the day-today lives of the people. If large numbers of people who have the right to vote are not allowed to vote, then the Government that comes to power will not be one that is legitimate, or conscious of the true aspirations of the people." Hence the writ petition. 4. Article 326 reads as follows: "326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.- The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non- residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such elections." 5. It can be noticed from the language of Article 326 that undoubtedly Article 326 mandates that the elections to the house of People as well as Legislative Assembly shall be on the basis of 'adult suffrage'. The expression 'adult suffrage' is further explained in the Article to say that it is the entitlement of Indian citizens who are not less than 18 years of age "on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature". Therefore, the Constitution itself prescribes the mode of determining the class of people who are not less than 18 years of age who are entitled to participate in the process of election either to the house of People or to the Legislative Assembly of a State. 6. The reason, according to us, is obvious. Therefore, the Constitution itself prescribes the mode of determining the class of people who are not less than 18 years of age who are entitled to participate in the process of election either to the house of People or to the Legislative Assembly of a State. 6. The reason, according to us, is obvious. Unless there is a clear prescription of the cut off date with reference to which the right to vote in an election is prescribed, every person who attains the qualifying age would be entitled to participate in the election even if he attained the age just one day before the actual date of election. Such a situation would cause a tremendous inconvenience in the conduct of the election and create a chaotic situation as it is not possible to predict the date of the election with precision. Therefore the preparation of the electoral list would continue till the date of the election. 7. Under the scheme of the Indian Constitution and the laws dealing with the election to both the houses of People as well as the Legislatures, voters are required to be identified with reference to various parameters like age, residence etc. Even among those who satisfy the requirements of both age and residence with reference to a particular Constituency, some of them are otherwise disqualified by law for reasons recognised by law such as unsoundness of mind, commission of crime etc. With reference to each one of such disqualifications, the length of the disqualification varies. Therefore, to keep on the identification process till the last date would only jeopardize the orderly conduct of the election. Realizing the difficulty, the Constitution makers prescribed that the attainment of the qualifying age is with reference to a specific date as may be fixed by appropriate Legislature. 8. It is the exercise of the powers so conferred by Article 326, the Parliament made the Representation of People Act, 1950 which deals with various aspects of the elections both to the houses of people as well as the Legislative Assemblies of the various States of this Country including the number of seats to be allocated to each of those houses apart from various other matters which are incidental to it. Section 15 of the said Act declares as follows: "15. Section 15 of the said Act declares as follows: "15. Electoral roll for every constituency._ For every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of this Act under the superintendence, direction and control of the Election Commission." 9. The subsequent Sections of Part III of the said Act deal with the method and manner of the preparation of the electoral roll. Section 19 mandates that every person who is not less than 18 years of age on the qualifying date either ordinarily resident in a Constituency shall be entitled to be registered in the electoral roll of that constituency. Section 19 reads as follows: "19. Conditions of registration.- Subject to the foregoing provisions f this Part, every person who- (a) is not less than eighteen years of age on the qualifying date, and (b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency." The expression 'qualifying date' under Section 19(a) is defined under Section 14(b) to mean as follows: "(b) "qualifying date", in relation to the preparation or revision of every electoral roll under this Part, means the 1st day of January of the year in which it is so prepared or revised:" 10. Therefore, it is clear from the above provision that a person's entitlement to get registered in the electoral roll depends upon the fact that whether a person has attained the age of 18 years on the qualifying date as defined under the said Act. The purpose behind such a prescription as authorised by Article 326 of the Constitution of India has already been explained above. In the circumstances we do not see any anomaly as projected by the petitioner. 11. We may also state here that in any system some inconvenience or imperfection is bound to exist. Constitution and the laws are meant for a working arrangement for governance of the country but not creating a mathematically precise and absolutely perfect or flawless administrative machinery. Such a thing can exist only in Utopia, but not in reality. We do not see any merit in the writ petition and the writ petition is dismissed at the admission stage.