The Telegraph
Saturday , April 5 , 2014
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SC query on jail contest

New Delhi, April 4: The Supreme Court today sought the Centre’s response on why people who are in police or judicial custody should not be barred from contesting elections.

However, the apex court refrained from staying last November’s amendment to the Representation of the People’s Act that enabled those in police or judicial custody to contest elections and to vote.

The amendment had been made to circumvent the apex court’s July 10 judgment last year that barred not just convicts but even those in police or judicial custody — except those in preventive detention -— from voting in or contesting elections.

Currently, therefore, only convicted candidates are barred from contesting polls.

Manohar Lal Sharma, an advocate, today filed an appeal in the Supreme Court challenging a Delhi High Court order of February 6 this year that had refused to quash the November amendment to the RP Act.

Section 62(5) of the RP Act says: “No person shall vote at any election if he/she 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 preventive detention under any law for the time being in force.”

After the July 10 judgment, which came in a public interest litigation, Parliament introduced a proviso to Section 62(5) in the RP (Amendment and Validation) Act, 2013.

“By reasons of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector,” it said.

“Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the RP Act, 1951, as amended by this act, shall have and shall be deemed always to have effect for all purposes as if the provisions of this act had been in force at all material times.”

Sharma today sought a stay on the amendment arguing that Parliament lacked the power to effect it without amending the Constitution first. He also claimed that the amendment was contrary to the public interest.

The petition pleaded that if a stay was not clamped, “several criminals will contest” elections and make it to Parliament and Assemblies with the help of “money and gun power”.

Sharma asked the court to intervene in the interests of free and fair elections and stop “criminalisation” of the Houses.

He said that besides the July 10 judgment by a two-judge bench, a Constitution bench in 1997 had upheld the validity of Section 62(5) of the RP Act.

The July 10 judgment had also said that lawmakers would stand disqualified the moment they were convicted of a range of specific offences, whether they were jailed or not.