PERSON IN JAIL OR POLICE CUSTODY CANNOT CONTEST ELECTIONS

• Two reasons (Only for Online Coaching Members and Premium Members)

• Article 102(1) of the Constitution states (Only for Online Coaching Members and Premium Members)

The Supreme Court in its landmark Judgement on 11 July 2013 barred Persons in Jail or Police Custody from contesting election for legislative bodies. The Supreme Courts decision would help in bringing an end to the era of the under trial politicians, who contest elections from behind the bars. The Supreme Court ruled that only an elector can contest the polls and the elector 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 will not be applicable to person subjected to preventive detention, under any law. The Supreme Court has held that persons in lawful custody whether convicted in a criminal case or otherwise cannot contest elections. The ruling, however, does not apply to those on bail. A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya dismissed appeals filed by the Chief Election Commissioner and others against a Patna High Court judgment that in 2004 had held that when a person in custody is disqualified from voting he or she must be disqualified from contesting in elections too. In its order, the Bench said: We have heard counsel for the [political] parties and 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 Section 62 (5) of the Representation of the People Act 1951 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.

Jan Chaukidar (Peoples Watch) and others filed petitions in the Patna High Court contending that a person, who was confined in prison, whether under a sentence of imprisonment, transportation or otherwise, or was in the lawful custody of the police was not entitled to vote by virtue of Section 62 (5) of the RP Act and accordingly was not an elector and was, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State.

The High Court accepted this contention and held: 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 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 right. It is [a] 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. Aggrieved by the findings of the High Court, the appellants filed the appeals and the Bench dismissed them and upheld the findings rendered by the High Court.

The Apex Court supported the decision of Patna High Court by quoting 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 SC Bench in its Judgement cited Section 62(5) of the Representation of People Act, 1951 (Acts of Parliament) 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 election.

This decision of the Supreme Court would bar the criminal elements from entering the Parliament and State Assemblies and keep the house clean. The judgement may change the future of Indian Politics in the coming time. In another two landmark judgments of the Supreme Court, delivered on July 10, 2013, regarding the disqualification of Members of Parliament and Members of Legislative Assemblies, and one interim order of the Lucknow Bench of the Allahabad High Court banning caste rallies have been the subject of a great deal of discussion and debate recently. I have perused and considered these judgments, and with great respect to the courts which passed these orders, have serious reservations about their correctness in law.

In Lily Thomas v. Union of India, the Supreme Court declared Section 8 (4) of the Representation of the People Act, 1951, (RPA) which allowed legislators a three-month window to appeal against their conviction effectively delaying their disqualification until such appeals were exhausted as unconstitutional. In Government of Andhra Pradesh v. P. Laxmi Devi (2008) the Supreme Court considered at great length the doctrine of judicial review of statutes. In paragraph 36 of that judgment, the Court observed that invalidating an act of the legislature is a grave step and should never be lightly taken. A court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question (vid paragraph 41 of that judgment).

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