THE CHIEF ELECTION COMMISSIONER ETC.versusJAN CHAUKIDAR (PEOPLES WATCH) & ORS

                  (2013] 10 S.C.R. 1163

                                                                A
     THE CHIEF ELECTION COMMISSIONER ETC.
                        v.
     JAN CHAUKIDAR (PEOPLES WATCH) & ORS.
       (CIVIL APPEAL NOS. 3040-3041 OF 2004)
                      JULY 10, 2013                             B
        [A.K. PATNAIK AND SUDHANSU JYOTI
                MUKHOPADHAYA, JJ.]

     Representation of the People Act, 1951 - ss.4, 5 and 62 C
- Qualification to contest election - Person having no right to
vote by virtue of the provisions of sub-section (5) of s. 62 of
the 1951 Act - Held: 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 - Representation of D
the People Act, 1950 - s. 16 - Constitution of India, 1950 -
Article 326.
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.·
3040-3041 of 2004.
                                                                E
     From the Judgment and Order dated 30.04.2004 of the
High Court of Judicature at Patna in C.W.J.C. No. 4880 & 4988
of 2004.

  · Paras Kuhad Siddharth Luthra, ASG, F.S. Nariman, Harish
Chander, Ml.J_~UI Gupta, Subhash Sharma, Lily Thomas            F
(Petitioner-ln~Person), Meenakshi Arora, Amit Pawan, Rajiv
Kumar Sinha, S. Chandra Shekhar, Satya Narain, Shukla
(Petitioner-In-Person), Saurabh Suman Sinha, Shilpa Singh,
Kamini Jaiswal, Abhimanue Shrestha, Amit Kumar, Abhinav
Mukerji, Tufail A. Khan, Mrinmayee Shau, Yatin Bhushan, S.V.    G
Balaram Deis, Angad Kochhar. V.K. Biju, Satya Siddiqui,
Sarfraz Ahmed Siddiqui, S.K. Mishra, S.S. Rawat, V.N.
Subramaniam, S. Wasim A. Qadri, P. Parmeswaran, D.S.
Mahra, S. Ahmed Siddiqui, Priyanka, V.N. Raghupathi, Vasan
                             1163                               H
    1164     SUPREME COURT REPORTS                [2013) 10 S.C.R.


A   Anantharaman, Sibo Sankar Mishra, Vijaya Lakshmi, Pragya
    Singh, Saurabh Kumar, Abhisth Kumar, Vikrant Yadav, Raman
    Yadav, lrshad Ahmad, Mohd. lrshad Hanif, Anil Kumar Jha for
    the appearing parties.

B        The Order of the Court was delivered by

                                  ORDER

        1. These are appeals by way of Special Leave under
  Article 136 of the Constitution against the common order dated
C 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
D 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 and is not otherwise disqualified
  under the Constitution or any law made by the appropriate
E 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')
F 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.
G
       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
H in Section 16 of the 1950 Act. Section 16(1)(c) of the 1950
THE CHIEF ELECTION COMMISSIONER ETC. v. JAN1165
    CHAUKIDAR (PEOPLES WATCH) & ORS.

Act provides that a person shall be disqualified for registration       A
in an electoral roll if he is for the time being disqualified from
voting under the 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          B
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          C
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
                                                                        0
(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.
      5. Writ petitioris C.W.J.C. No.4880 of 2004 and C.W.J.C.          E
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        F
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:
                                                                        G
     "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       H
    1166     SUPREME COURT REPORTS                [2013] 10 S.C.R.


A       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
B       right. It is privilege to vote, 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
c       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
D 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.

E        7. These civil appeals are accordingly dismissed. No
    costs.

    B.B.B.                                     Appeals dismissed.