Prisoners have no right to vote, Delhi HC re-affirms constitutional validity of Section 62(5) RP Act

The constitutional validity of Section 62(5) of the Representation of the People Act, 1951, the Delhi High Court has re-affirmed that prisoners have no right to vote. (Praveen Kumar Chaudhary vs Election Commission & Ors)

The judgment was passed by a Division Bench of Chief Justice DN Patel and Justice C Hari Shankar in public interest litigation preferred by one Praveen Kumar Chaudhary.

It was the Petitioner’s contention that Section 62(5) was violative of the basic structure of the Constitution.

The Petitioner argued that under the provision, there was no valid classification between the persons who are in jail and the persons who are on bail or out of jail.

The Petitioner further pointed out that as per the second proviso to Section 62(5), while a person whose name has not been entered in the electoral roll does not cease to be an elector and can also contest the election, he/she cannot cast his/her vote if he/she is in jail.

This type of classification, the Petitioner submitted, was not valid in the eyes of law and was violative of Article 14 of the Constitution of India.

The Election Commission, on the other hand, argued that this issue had already been decided by the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors (1997).

The Election Commission pointed out that the Supreme Court had noted that Article 14 permitted reasonable classification which had a rational nexus with the object of classification.

Stating that criminalisation of politics was the bane of society and negation of democracy, the Supreme Court had opined the object of free and fair elections and maintenance of law and order were the essence of democracy and upheld the validity of Section 62(5) for making a reasonable classification, the Election Commission further pointed out.

In view of the submissions and the Supreme Court’s decision, the Court reiterated that the right to vote was neither a fundamental right nor a constitutional right.

It said,

“Right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”

Delhi High court

Referring to the classification as a valid classification, the Court added that persons who are out of jail and persons who are in jail are class by themselves.

After perusing a series of other case laws on the issue, the Court opined that Section 62(5) was constitutionally valid.

It said,

“The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved ..”

Delhi High court