The Supreme Court on Thursday barred persons lodged behind bars from contesting polls to legislative bodies, its second consecutive verdict in the direction of cleansing the nation’s politics of people with criminal antecedents.
The apex court said a person who is in judicial or police custody cannot contest elections to local civic bodies, state Assemblies or Parliament. It, however, clarified that the disqualification would not be applicable to a person subjected to preventive detention under any law.
A bench comprising Justices A.K. Patnaik and S.J. Mukhopadhyay ruled that only an “elector” can contest the polls and he/she ceases to have the right to cast a vote due to confinement in prison or being in the custody of the police. “If a jailed person can’t vote, a jailed person can’t contest elections,” the bench remarked. “A right to vote is a statutory right, the law gives it and the law takes it away. Persons convicted of crime are kept away from elections. The court has no hesitation in interpreting the Constitution and the laws framed under it, 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,” it said. Referring to the Representation of the People Act, the bench said Sections 4 and 5 lay down the qualifications for membership of the House of the People and Legislative Assembly and one of the qualifications laid down is that he must be an elector. The bench said Section 62(5) of the act says 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. Reading Sections 4, 5 and 62(5) together, the apex court came to the conclusion that a person in jail or n Turn to Page 2
police custody cannot contest an election.
The court passed the order on a appeal filed by the Chief Election Commissioner and others challenging a Patna high court order of 2004 barring people in police custody from contesting polls. “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.
On Wednesday, the same bench had in a landmark judgement struck down a provision in the Representation of the People Act that protects a convicted lawmaker from disqualification on the grounds of pendency of appeal in higher courts. The bench had also made it clear that MPs, MLAs and MLCs would stand disqualified on the date of conviction. The court had in its judgment held that Parliament exceeded its powers by enacting the provision (Section 8(4) of the Representation of the People Act) that gives a convicted lawmaker the power to remain in office on the grounds that appeals have been filed and are pending. Sub-section 8(4), which was struck down, said a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.