The Telegraph
Friday , July 12 , 2013

Bar on candidates behind bars

New Delhi, July 11: Anyone who is in jail, even if awaiting trial and not yet convicted, cannot contest elections or vote in them, the Supreme Court has ruled.

This ruling, which exempts those in preventive detention, was part of yesterday’s landmark judgment but was uploaded on the apex court website today.

Yesterday, the court had ruled that any lawmaker stood disqualified the moment they were convicted of a range of specific offences, whether or not they were jailed, and were barred from contesting for six years.

The court explained that the judgment on jailed persons was based on two premises:

Sections 4 and 5 of the Representation of the People Act (RPA), 1951, say an election candidate must be a voter; and

Subsection 5 of Section 62 of the RPA prohibits prisoners from casting their vote.

Although the matter may appear cut and dried, the issue had been pending in the apex court for nine years before this judgment resolved it. For, although these RPA sections have been in force for over six decades, people have been known to contest polls from jail and win as recently as 2009.

The issue came up before the courts in 2004 when an NGO, Jan Chaukidar, and some others moved a public interest litigation (PIL) in Patna High Court pleading that those who have criminal antecedents or are in jail be barred from voting. In May that year, the high court ruled in the petitioners’ favour.

But the Election Commission moved the apex court, arguing the order could not be implemented as the election process for the 2004 Lok Sabha polls had already begun. The Supreme Court granted a stay and since then, the issue had awaited a resolution.

Eventually, the bench of Justices A.K. Patnaik and S.J. Mukhopadhaya, who passed yesterday’s order, clubbed the matter with two other PILs they were hearing. Yesterday, they upheld the high court verdict.

A two-judge bench of Patna High Court, comprising its then Chief Justice R.S. Dhawan and Justice Sashank Singh, had suspended the voting rights of anyone who was in jail.

“The name is not struck off (the electoral rolls), but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away,” it said.

Patna High Court lawyer Basant Kumar Choudhary, who was the convener of Jan Chaukidar in 2004, spoke sympathetically of the poll panel’s then decision.

“The Election Commission did not want to appeal against the verdict but the election process for the 2004 Lok Sabha polls had started,” he said. “If the order was to be implemented, the whole election process would have been disturbed.”

Section 4 of the 1951 Act says that to qualify as MP, a person must be an “elector” at any parliamentary constituency. Section 5 lays down a corresponding rule for MLAs.