Rajasthan High Court - Jaipur
Banwari Lal Kushwaha vs State Of Rajasthan And Ors on 9 June, 2016
Author: Prakash Gupta
Bench: Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Writ Petition No.234/2016 Banwari Lal Kushwaha vs. State of Rajasthan & Ors. Date of Order: 9.6.2016 HON'BLE MR. JUSTICE PRAKASH GUPTA,VJ. Mr. Rajeev Surana for petitioner Mr. BN Sandu, AAG & GA Mr. Sudesh Saini, Addl. G.C. Mr. RS Raghav, Dy. GC for the respondents. Reportable By the Court:-
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 petitioner Shri Rajeev Surana that the petitioner is an elected representive of Legislative Assembly, is presently, behind the bars pending trial for the offence under Section 302 and 120 B of IPC. By notification dated 18th May, 2016 Election of Rajya Sabha has been declared and voting for the same going to be held on 11th June, 2016. It is submitted that petitioner has a right to vote as he represents the Dholpur constituency. Though, the petitioner is confined in Dholpur jail District Dholpur, yet has the right to cast vote since he has not been convicted and is merely imprisoned pending trial. Therefore, he may be allowed to exercise the said right while accompanied by police escort. Learned counsel for the petitioner made a reference to the Judgment of Hon'ble Apex Court in the case of Nalin Soren v. State of Jharkhand, in petition for special leave to appeal Criminal No. 5859/2013 decided on 18.7.2013 wherein permission to attend the assembly proceedings was granted. It is also submitted that the right of the petitioner to said vote is a constitutional right. Learned counsel for the petitioner has further placed reliance on a judgment of the Orissa High Court in the case of Shri Ramesh Chandra Jena @ Ramesh Jena vs. State of Orissa and Ors., WP(C) No.10342 of 2010, decided on 10.06.2010 wherein the petitioner, a member of the Orissa Legislative Assembly, was allowed to participate in the process of voting to the Biennial Elections to the Council of States, 2010.
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 (1997), 6 SCC page 1.
4. I have heard learned counsel for the parties.
5. The preamble to the Representation of the People Act 1950 reads as under;
An Act to provide the allocation of seats in, and the delimitation of Constituencies for the purpose of election to the House of the People and legislatures of states, the qualification of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the council of states to be filled by representatives of Union Territories, and matters connected therewith.
6. The Preamble to the Representation of the People Act 1951 reads as under;
An Act to provide for the conduct of elections of the House of Parliament and to the House or Houses of the Legislatures 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 disputes arising out of or in connection with such elections.
7. From the perusal of the preambles of these Acts, it is apparent that these Acts are supplementary to each other and constitute a complete code on the matters relating to the allocation of seats in, and the delimitation of constituencies for the purpose of election to the House of the People and the legislatures of states, the qualification of votes at such elections, the preparation of electoral rolls, the manner of filling seats and the council of states to be filled by representatives 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. Main Section delegates power 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.
9. In light of the above the provision contained in Section 62 of the Act of 1951, is to be examined. The Section reads as under:-
62.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 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 role 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 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 (1997)6 SCC 1 examines the constitutional validity of the provision of Section 62 (5) of the Act of 1951 on the touchstone of Articles 14 and 21 of the Constitution and upholds its validity observing as under:-
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 subject to any kind of preventive detention.
In paragraph 9 of the Judgment it was also observed 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.
11. The Judgment of the Hon'ble Apex Court in Kuldeep Nayar and others v. Union of India and others (2006)7 SSC 1 deals with the validity of the Representation of the people (Amendment) Act 2003 by which the requirement of 'domicile' in the state for the election to the Council of States had been done away with and a provision of open ballot at an election for the Council of States had been made. The Hon'ble Apex Court has upheld the validity of the Act on both the counts.
12. 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 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 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 detention. Furthermore, right to cast vote at an election is a statutory right as observed by the Supreme Court in Anukul Chandra Pradhan's case (supra).
14. Right of a member to participate in the proceedings of the legislative assembly is a matter relating to proceeding of the house and it is not regulated by the law relating to the elections. Therefore, the judgment of the Hon'ble Apex Court in the case of Nalin Soren (supra) relied upon by the learned counsel for the petitioner, in my humble opinion is not helpful to interpret the provisions of the Representation of People Act.
15. Additionally in my considered view Chief Election Commission of India and Secretary Rajasthan State Assembly are necessary parties in the present petition and they are not made party by the petitioner. On this count also, the present petition deserves to be dismissed.
16. In view of the above discussions the directions sought for by the petitioner cannot be given. The petition is accordingly dismissed.
(PRAKASH GUPTA),VJ.
M.Meena/ All corrections made in the order have been incorporated in the order being uploaded.
Madan Meena, Jr.PA