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2012 DIGILAW 1014 (MAD)

Susheela v. Returning Officer-cum-Secretary

2012-02-24

D.MURUGESAN, P.P.S.JANARTHANA RAJA

body2012
Judgment :- D. MURUGESAN, J. 1. I.Subramaniam, learned Public Prosecutor takes notice for respondents 2 to 4. 2. The petitioner is the wife of one D.Kubendran. The said D.Kubendran was elected as Councillor from Ward No.20 in Needamangalam Panchayat Union, Thiruvarur District in the local body elections held during October, 2011. He was elected as Vice Chairman of the said Panchayat Union. The post of Chairman of the said Panchayat was vacant and due to the resignation of the Chairman, the said D.Kubendran is holding the post of Chairman (in-charge). The Election Commission had notified the election to the post of Chairman to be held on 27.02.2012 commencing from 9.30 a.m. 3. On 18.02.2012, the Inspector of Police, Anti land Grabbing Special Cell, Thanjavur, has registered a case in Crime No.5 of 2012 against the said D.Kubendran and six others for the alleged offences under Sections 120(B), 147, 447, 506(ii), 352 IPC and Section 3(1) of TNPPDL Act read with Section 109 IPC. On the basis of the said complaint, the husband of the petitioner was arrested on 19.02.2012 and was remanded to judicial custody and lodged at Central Prison, Trichirapalli. A bail application filed before the learned Judicial Magistrate No.II, Thanjavur, was dismissed on 20.02.2012. A further bail application was filed before the Sessions Court, Thanjavur and the same was posted for hearing on 24.02.2012 and as on today, the husband of the petitioner is in judicial custody and has not been granted bail. 4. Under the above circumstances, the petitioner, who is the wife of the said D.Kubendran, has approached this Court by way of present writ petition seeking for a direction to the Superintendent of Police, Thiruvarur District, to take the husband of the petitioner to the polling booth and permit him to participate in the Election of Chairman of Panchayat Union, at Needamangalam, Tiruvarur District, to be held on 27.02.2012 and take back him to the Central Prison, Trichirappalli, after exercising his franchise. 5. We have heard Mr.S.Doraisamy, learned counsel appearing for the petitioner and Mr.I.Subramaniam, learned Public Prosecutor appearing for respondents 2 to 4. 6. It is the contention of Mr.S.Doraisamy, learned counsel for the petitioner that the petitioner's husband has got a statutory right to cast vote in terms of the Rule 83 of the Tamil Nadu Panchayats (Elections) Rules, 1995, relating to voting procedure and it cannot be contrary to the same. 7. 6. It is the contention of Mr.S.Doraisamy, learned counsel for the petitioner that the petitioner's husband has got a statutory right to cast vote in terms of the Rule 83 of the Tamil Nadu Panchayats (Elections) Rules, 1995, relating to voting procedure and it cannot be contrary to the same. 7. Mr.I.Subramaniam, learned Public Prosecutor, who opposed the contention, has brought to the notice of this Court the judgment of the Division Bench of this Court in (2004) 1 Law Weekly 385 (THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY, HOME DEPARTMENT, CHENNAI-600 009 V. VAIKO), wherein the Division Bench has held that unless there is any such right, statutory or otherwise, there will be no question of permitting the respondent therein to take part in the Parliamentary proceedings and to cast his vote. 8. The only question to be decided is as to whether the petitioner's husband has got any right, much less fundamental or statutory right, to cast his vote and for that reason, he should be taken to the polling booth by the police, as he is presently in judicial custody. The right to cast vote is not a fundamental right and it is only a statutory right. Rule 48 of the Tamil Nadu Panchayats (Elections) Rules, 1995 relates to right to vote. Sub-rule (5) of Rule 48 of the said Act states that no person shall vote at any election, if he is confined in a prison, whether under a sentence of imprisonment or otherwise. There is a specific bar for such person to claim as a matter of right to vote at any election in the event he is either in confinement in a prison under a sentence or even under judicial custody of remand. As on today, the husband of the petitioner is in judicial custody and admittedly, the petition seeking for grant of bail has also been rejected. In these circumstances, Rule 48(5) of the Act would not help in any way to the husband of the petitioner to cast vote. This being a disqualification to claim right for voting and in the absence of even statutory right, the Writ of Mandamus cannot be issued. 9. In these circumstances, Rule 48(5) of the Act would not help in any way to the husband of the petitioner to cast vote. This being a disqualification to claim right for voting and in the absence of even statutory right, the Writ of Mandamus cannot be issued. 9. That apart, the law as on today as has been declared by the Apex Court, particularly in the judgment reported in AnukulChandra Pradhan V. Union of India ( AIR 1997 SC 2814 ), is that the right to vote is only a statutory right and it is subject to the provisions of the Representation of People Act, 1951. When the scope of the provisions of Section 62(5) of the Representation of People Act, 1951, came up for consideration, the Apex Court observed as follows:- "By this petition under Article 32 of the Constitution challenge is made to the constitutional validity of sub- section (5) of Section 62 of the Representation of the People Act 1951 . Section 62 relates to right to vote and is as under: "62. Right to vote.- (1) No person who is not, a 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 a disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall not at a general election in more than one constituency of the same class, and if a person votes is more an 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 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 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." 2. (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." 2. Section 62 contains five sub-sections. Sub-section (1) says that every person who is for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. Sub-section (2) debars a person from voting at the election if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act 1950 which deals with disqualifications for registration in an electoral roll. Sub section (3) forbids every person from voting in more than one constituency of the same class. Sub-section (4) forbids every person from voting in the same constituency more than once. Sub-section (5) debars a person to vote in an 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. The proviso to Subsection (5) carves out an exception for a person subjected to preventive detention under any law for the time being in force. Thus a person confined in a prison under a sentence of imprisonment or otherwise or in the lawful custody of the police is debarred from voting at any election during the period of his confinement in the prison, but this bar does not apply to a person under preventive detention. We are concerned with the constitutional validity of sub-section (5). 3. The argument of Shri. Rajinder Sachar, the learned counsel for the petitioner, is that sub-section (5) of Section 62 of the Act violates Articles 14 and 21 of the Constitution. The submission is that the expression "or otherwise" in sub section (5) of Section 62 has a very wide connotation and denies voting right even to under-trials and other persons detained in a prison for any reason, including the reason of inability to finish bail. He submitted that the restriction applies to a person in lawful custody of the police which would include a person detained during investigation before a chargesheet has been filed against him. He submitted that the restriction applies to a person in lawful custody of the police which would include a person detained during investigation before a chargesheet has been filed against him. On the other hand, a person convicted and sentenced to imprisonment but released on bail is permitted to vote. The learned counsel contended that this is discrimination and violates Article 14 of the Constitution. lt was further contended by the learned counsel that there is violation also of Article 21 inasmuch as the restriction placed on the prisoner's right to vote by sub-section (5) of Section 62 of the Act denies dignity of life. In substance, the challenge to the constitutional validity of sub-section (5) of Section 62 is based primarily on Article 14 of the Constitution. 4. It is settled that Article 14 permits reasonable classification which has a rational nexus with the object of classification. The question is whether the classification made by sub-section (5) of Section 62 is reasonable or not. 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, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object. 6. 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, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object. 6. The effect of sub-section (5) of Section 62 of the Act is that any person who is confined in prison while serving a sentence of imprisonment on his conviction for any offence or is under lawful confinement in a prison or in a police custody for any reason is not entitled to vote in an election, but this restriction does not apply to a person subjected to any kind of preventive detention. 7. The learned counsel, Shri Sachar argues that persons in preventive detention cannot be classified separately. That by itself would not result in the invalidity of whole of subsection. (5), but can affect the validity only of the proviso therein. The challenge in the present case is not merely to the proviso, but to the whole of sub-section (5). This argument does not, therefore, advance the petitioner's case. However, for the purpose of the present challenge, it is sufficient to say that preventive detention differs from imprisonment on conviction or during investigation of the crime of an accused which permits separate classification of the detenus under preventive detention. Preventive detention is to prevent breach of law while imprisonment on conviction or during investigation is subsequent to the commission of the crime. This distinction permits separate classification of a person subjected to preventive detention. 8. There are other reasons justifying this classification. It is well known that for the conduct of free, fair and orderly elections, there is need to deploy considerable police force. Permitting every person in prison also to vote would require the deployment of a much larger police force and much greater security arrangement in the conduct of elections. A part from the resource crunch, the other constraints relating to availability of more police forces and infrastructure facilities are additional factors to justify the restrictions imposed by sub-section (5) of Section 62. A part from the resource crunch, the other constraints relating to availability of more police forces and infrastructure facilities are additional factors to justify the restrictions imposed by sub-section (5) of Section 62. A person who is in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech and expression with the other who are not in prison. The classification of persons in and out of prison separately is reasonable. Restriction on voting of 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. 9. It may also be mentioned that the nature of right to vote has been held to be a statutory right and not a common law right because of which it depends on the nature of right conferred by the statute. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other, [1952] S.C.R. 218 at 236, the Constitution Bench held : "The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it." 10. In JumunaPrasad Mukhariya and Others v. Lachhi Ram and Others, [1955] 1 S.C.R. 608 at 610, the Constitution Bench reiterated: "...The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute...". 11. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute...". 11. In JyotiBasu v. Debi Ghosal, (1982) 1 SCC 691 at 696, the law on the point was restated, thus: "7.The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, [1952] S.C.R. 218 and Jagan Nath v. Jaswant Singh, [1954] S.C.R. 892. We proceed to state what we have gleaned from what has been said, so much as necessary for this case. 8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, creations they are, and therefore, subject to statutory limitation." 12. In view of the settled law on the point, in must be held that the right to vote is subject to the limitation imposed by the statute which can be exercised only in the manner provided by the statute; and that the challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of sub-section(5) of Section 62 of the Act is, therefore, not available and this petition must fail. 13. Consequently, this petition is dismissed. No costs." 10. In fact, recently, in the judgment reported in (2010) 7 SCC 202 , K.Krishnamurthy vs. Union of India, the Apex Court, though considered a different issue, nevertheless, has reiterated the same principle, viz., the right to vote is a statutory right and that right is subject to the provisions of the Representation of People Act. 11. No costs." 10. In fact, recently, in the judgment reported in (2010) 7 SCC 202 , K.Krishnamurthy vs. Union of India, the Apex Court, though considered a different issue, nevertheless, has reiterated the same principle, viz., the right to vote is a statutory right and that right is subject to the provisions of the Representation of People Act. 11. Referring to the above provisions, the Division Bench of this Court, where one of us was a Member, rejected a similar request made by the petitioners numbering 49 seeking for direction to the police authorities to escort the petitioners from Central Prison, Cuddalore, to cast vote in the general elections held during April, 2011. 12. In that view of the matter, there is no merit in the writ petition and accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.