New Delhi, July 11: A person who is in jail or in police custody cannot contest an election to a legislative body, the Supreme Court has held, bringing to an end an era of undertrial politicians fighting polls from behind bars.
The apex court, which was hearing an appeal against a 2004 Patna High Court order suspending voting rights of those in jail, ruled that only an “elector” can contest the polls and he or she ceases the right to cast vote due to confinement in prison or being in custody of police.
The court, however, made it clear that disqualification would not be applicable to persons subjected to preventive detention under any law.
The bench of Justice A.K. Patnaik and Justice S.J. Mukhopadhaya, which had yesterday passed a landmark ruling that convicted legislators cannot continue in the House, has now held that persons in judicial custody in connection with some case also cannot contest or vote as it is prohibited by the Representation of the People Act, 1951. Though this judgment too was pronounced yesterday by the apex court, it was uploaded on the official website today.
Legal experts said the two verdicts would force political parties to make sure that candidates facing criminal charges are not fielded.
Referring to the Act, the bench said Sections 4 & 5 lay down the qualifications for membership of Parliament and Assembly and one of the conditions is that he must be an elector or voter.
The bench said Section 62(5) of the Act says that no person shall vote in 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. Reading Sections 4, 5 and 62(5) together, the apex court came to the conclusion that a person in jail or police custody cannot contest elections.
The court passed the order on an appeal filed by the Chief Election Commissioner and others challenging a Patna High Court order.
“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,” the apex court said.
In May 2004, the Patna High Court bench of then Chief Justice R.S. Dhawan and Justice Sashank Singh had passed the order on a PIL filed by an NGO Jan Chowkidar (People’s Watch), pleading that those with criminal antecedents or in jails should not be allowed to vote. “I had maintained in my petition that while in jail, a person’s voting rights remain suspended. In order to contest a Lok Sabha or an Assembly seat, you must have your voting rights intact,” said senior advocate of Patna High Court Basant Kumar Choudhary, who had filed the PIL.
The Election Commission moved the apex court in 2004 challenging the Patna High Court’s directive to delete the names of voters/contestants who were in prison during the 2004 Lok Sabha elections.
Upholding the high court’s decision, the apex court has said that the word “elector” is defined in the 1951 Act to mean a person whose name is entered in electoral rolls of the constituency and who is not subject to any of the disqualifications mentioned in Section 16 of the Act.
“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 (transit or undertrial) 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,” Justice Patnaik, writing the judgment, said.
