CHIEF ELECTION COMMISSIONER ETC. Vs JAN CHAUKIDAR (PEOPLES WATCH) .
Bench: A.K. PATNAIK,SUDHANSU JYOTI MUKHOPADHAYA
Case number: C.A. No.-003040-003041 / 2004
Diary number: 9856 / 2004
Advocates: Vs
SIBO SANKAR MISHRA
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3040-3041 OF 2004
The Chief Election Commissioner Etc. … Petitioners
Versus
Jan Chaukidar (Peoples Watch) & Ors. … Respondents
ORDER
These are appeals by way of Special Leave under Article
136 of the Constitution against the common order dated
30.04.2004 of the Patna High Court in C.W.J.C. No.4880 of
2004 and C.W.J.C. No.4988 of 2004.
2. The facts very briefly are that Article 326 of the
Constitution provides that the elections to the House of
the People and to the Legislative Assembly of every State
shall be on the basis of adult suffrage and 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
Page 2
and is not otherwise disqualified under the Constitution or
any law made by the appropriate Legislature on the
grounds of non-residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled to be registered
as a voter for any such election. In accordance with
Article 326 of the Constitution, Parliament has enacted the
Representation of the People Act, 1950 (for short ‘the
1950 Act’) for registration of voters at such elections to
the House of the People and to the Legislative Assembly of
every State and has also enacted the Representation of
the People Act, 1951 (for short ‘the 1951 Act’) for the
conduct of elections to the Houses of Parliament and to
the Houses of Legislature of each State.
3. The word “elector” is defined in the 1951 Act in
relation to the constituency to mean a person whose name
is entered in electoral rolls of the constituency for the time
being in force and who is not subject to any of the
disqualifications mentioned in Section 16 of the 1950 Act.
Section 16(1)(c) of the 1950 Act provides that a person
shall be disqualified for registration in an electoral roll if he
is for the time being disqualified from voting under the
Page 3
provisions of any law relating to corrupt practices and
other offences in connection with elections.
4. Section 4 of the 1951 Act lays down the qualifications
for membership of the House of the People and one of the
qualifications laid down is that he must be an “elector” for
any Parliamentary constituency. Similarly, Section 5 of the
1951 Act lays down the qualifications for membership of a
Legislative Assembly of a State and one of the
qualifications laid down is that he must be an “elector” for
any Assembly constituency in that State. Section 62 of
the 1951 Act is titled “Right to vote” and it provides in
sub-section (5) that 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. The proviso to sub-section
(5) of Section 62 of the 1951 Act, however, states that the
sub-section will not apply to a person subjected to
preventive detention under any law for the time being in
force.
Page 4
5. Writ petitions C.W.J.C. No.4880 of 2004 and C.W.J.C.
No.4988 of 2004 were filed in the Patna High Court
contending that a person, who is confined in prison,
whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of
the police is not entitled to vote by virtue of sub-section
(5) of Section 62 of the 1951 Act and accordingly is not an
“elector” and is, therefore, not qualified to contest
elections to the House of People or the Legislative
Assembly of a State because of the provisions in Sections
4 and 5 of the 1951 Act. By the impugned common order,
the High Court accepted this contention in the writ
petitions and held:
“A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote,
Page 5
which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.”
6. Aggrieved, by the findings of the High Court, the
appellants have filed these appeals. We have heard
learned counsel for the parties and we do not find any
infirmity in the findings of the High Court in the impugned
common order that a person who has no right to vote by
virtue of the provisions of sub-section (5) of Section 62 of
the 1951 Act is not an elector and is therefore not
qualified to contest the election to the House of the People
or the Legislative Assembly of a State.
7. These civil appeals are accordingly dismissed. No
costs.
..……………..……………………….J. (A. K. Patnaik)
...…………..………………………..J.
(Sudhansu Jyoti Mukhopadhaya)
Page 6
New Delhi, July 10, 2013.