Why an Accused Can contest the election but cannot vote?

The Chief Election Commissioner etc. v. Jan Chaukidar (Peoples Watch) and Ors (MANU/SC/0689/2013, 2013(8) SCALE487)

Decided on:                10.07.2013

Hon’ble Judges:         A.K. Patnaik and Sudhansu Jyoti Mukhopadhaya, JJ.

  1. Background of the Case

In 2004, a Public Interest Petition was filed in Patna High Court, by Jan Chaukidar, an NGO, in wake of several malpractices in elections reported in Bihar. The Patna High Court in its ruling debarred all those people who are in lawful police custody and serving jail terms, from voting, or contesting election for parliament or state assemblies, even if they are enrolled as voters.[1]

The Hon’ble High Court ruled that the qualification for membership of the House of People, under section 4(d) of Representation of People Act, requires that a candidate has to be an elector. An elector is a person, who is legally entitled to vote. However, under section 62(5) of Representation of People Act, lays down that right to vote is not available to a prisoner, except a person under preventive detention. Thus, all prisoners who are not under preventive detention can neither vote nor can they contest elections. This verdict was challenged by Chief Election Commissioner and others in the Supreme Court.

On 10th July 2013, a divisional bench, comprising of Justice AK Patnaik and Justice SJ Mukhopadhaya, upheld the verdict of Patna High Court. It was pointed out that section 62(5), clearly lays down that any person, who is under the lawful custody of the police, or under the sentence of imprisonment or transportation or otherwise, is not allowed to vote, and since the person does not qualify as an elector, he cannot stand as a candidate for election to the House. The Hon’ble Supreme Court further clarified that this does not apply to people who are held under preventive detention.[2]

We do not find any infirmity in the findings of the HC 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. These civil appeals are accordingly dismissed the apex court ruled.

The ruling was followed by a quick reaction by the legislature. Representation of People (Amendment and Validation Act) 2013 was passed within three months. The bill received the President’s assent on 23rdSeptember 2013. It amended section 7, 62 and 43 of the 1951 Act. The major amendment by this act was that of section 62, which is in section 62 of the Principal Act[3], after the proviso to sub-section (5), the following proviso shall be inserted, namely, Provided further that by reason 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.”[4]

Section 4 of the amendment introduces the retrospective effect. It made the act to be applicable from 10th of July, thus totally nullifying the Supreme Court’s ruling. Hence, in the present day, a person is entitled to vote as well as stand for election as long as his name is in the electoral roll.[5]

  1. Issue

Whether a convicted person has right to vote and contest election?

  1. Judgement

We have heard learned Counsel for the 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 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 Patna High Court had held as follows:

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

These civil appeals are accordingly dismissed without any cost.

The legislature passed Representation of People (Amendment and Validation Act) 2013 to nullify the judgement The Chief Election Commissioner etc. v. JanChaukidar (Peoples Watch) and Ors.[6]

Soon after the passing of the Amendment Act of 2013 a PIL (Manohar Lal Sharma v. Union of India[7]) was filled in Delhi High Court which upheld the Constitutional validity of an amendment to the Representation of People Act that allowed people jailed before conviction to contest elections.  The Delhi High Court had reasoned, “Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of ‘vendetta politics’ by ruling parties. All that a politician/ruling party-in power would need to do to prevent rivals from contesting an election is to ask the police to file a case and to arrest the rivals.”[8]

The petitioner, ManoharLal Sharma had contended before the Delhi High Court that, “The impugned Amendment and Validation Act, 2013 is a fraud upon the Constitution and vitiated by mala fides as it had been enacted by political leaders to protect their vested interests by hatching a conspiracy.”

However, an Apex Court Bench headed by Chief Justice H.L. Dattu on December 07, 2017, dismissed a petition filed against Delhi High Court’s order in February which upheld the Constitutional validity of an amendment to the Representation of People Act that allowed people jailed before conviction to contest elections. The Delhi High Court had reasoned, “Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of ‘vendetta politics’ by ruling parties. All that a politician/ruling party-in-power would need to do to prevent rivals from contesting an election is to ask the police to file a case and to arrest the rivals.”[9]

  1. Analysis

The judgment says that a person who is confined in a prison or in the lawful custody of police, loses the right to vote (S. 62(5) of RPA), and is hence disqualified from contesting elections. The reasoning is that a person who has no right to vote is disqualified from registering in the electoral rolls (S. 16(1)(c) of RPA), implying that he/she is not an ‘elector’ (S. 2(1)(e) of RPA) – which is one of the qualifications for “being chosen to fill a seat” of the House of the People and a Legislative Assembly of a State (S. 4(d) and 5(c) of RPA).[10]

“The Supreme Court took the view that it was reasonable to deny voting rights to convicted prisoners, under trials and those in police custody because it was being done to curb the criminalisation of politics. Further, it took account of practical considerations and ruled that the additional resources that would be required in terms of infrastructure, security and deployment of extra police forces were legitimate justifications in denying the right to vote to prisoners and those in custody. The court was of the view that a prisoner was ‘in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment [and] cannot claim equal freedom of movement, speech and expression with the others who are not in prison.”[11]

However, the decision forces to ponder upon whether section 62(5) is constitutionally sound. Right to vote is a statutory right, and hence is under the regulation by the legislature, subject to Article 325 and 326 of the constitution.[12] Section 62(5), is one of the conditions laid down, which has to be looked upon for a person to vote in the election. The validity of section 62(5) was raised before the Hon’ble Supreme Court. It was contended that the section is violative of Article 14, right to equality and Article 21, right to life. The Supreme Court rejected this challenge.

Still, considering section 65(2) to be valid, it violates the principle of “Innocent until proven guilty”. Under this section, we are placing the people who are accused of an offence under the same category of those who are already convicted and not allowing them to vote. The principle of reasonable classification is valid under Article 14 however; such a classification is averse to classifying reasonably. It gives power to a person to strip off other person from is right to vote, by simply accusing him and accounting him to go to jail. Such a rule negates the very concept of citizenship and denies the person of his right to be heard of in forming the government.

If section 62(5), is considered to be valid and abiding to all the constitutional principles, then the rationale given by the Hon’ble Supreme Court behind the decision is logically sound.

  1. Comment

Even though, the effects of Jan Chaukidar case have been nullified, the whole episode has left a lot to learn from it. The concern raised by the various criticizers, if looked from one point of view seems to be very genuine. In a society like India, where law is used as means to an end, misusing the rule laid down by the decision is something which cannot be done away with. There were chances, that it could have been misused to bar good candidates from contesting the election. It could have been used by the influential candidates in order to bar their opponents. Looking from this point of view, the quick step taken by the parliament seems to be something which has to be complimented. If the act was done, with the intention with which it was said to be done, it inculcates the faith back into the legislature and forces the general public to ponder that maybe the parliament has not lost its essence. Maybe our parliament is still competent enough to make and amend rules as the need arises. However, on the other hand, the increasing number of MPs and MLAs having cases registered against them is a fact which cannot be denied. With more and more candidates contesting election being accused of something, it raises concern, whether the step is in actuality what it is, or is it just another example of ‘which could not have been done directly, has been done indirectly’. No, decision can be totally correct or totally wrong. A correct decision according to the law may be incorrect in eyes of some people. The correctness of the decision has to judged, weighing both the positive effects and the repercussions produced by it. In the present case, the contemplation has to take place taking into account the concerns raised as well as grass root reality.

Recently on December 01, 2017, the Hon’ble Supreme sought responses from the Centre and the Election Commission on a public interest plea seeking a ban on convicted politicians from holding any posts in political parties. Petitioner Ashwini Kumar Upadhyay ruled that while convicted politicians, if jailed for two years or longer, can be banned from contesting elections for six years after release, there is no bar on them from holdings posts in political parties. The bench of Chief Justice DipakMisra and Justices A. M. Khanwilkar and D. Y. Chandrachud has fixed the next hearing after six weeks.[13]

[1]R. Sedhuraman,  Apex Court: Those in jail can’t vote, contest polls, The Tribune (July 12, 2013), www.tribuneindia.com/2013/20130712/main5.htm  (Accessed on December 2, 2017)

[2]Person in lawful custody cannot contest polls, Available at;http://www.thehindu.com/news/national/persons-in-lawful-custody-cannot-contest-polls-court/article4905516.ece    (Accessed on December 01, 2017)

[3]Representation of People Act, 1951

[4] The Representation of People (Amendment  and Validation) Bill, 2013, Available at:

http://www.prsindia.org/billtrack/the-representation-of-the-people-amendment-and-validation-bill–2900/ (Accessed on: December 02, 2017).

[5] Ibid.

[6](MANU/SC/0689/2013, 2013(8) SCALE487).

[7]ManoharLal Sharma vs Union Of India, available at: https://indiankanoon.org/doc/159664944/ (Accessed at: December 01, 2017).

[8] Ibid.

[9]Supreme Court dismisses challenge to amendment to Representation of People Act which allows jailed politicians to contest elections…, Available at: http://www.livelaw.in/supreme-court-dismisses-challenge-amendment-representation-people-act-allows-jailed-politicians-contest-elections/  (Accessed on December 02, 2017)

[10]Vasujith Ram, Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result, Lawandotherthings , Available at:  http://lawandotherthings.com/2013/08/reading-lily-thomas-and-jan-chankidar/  (Accessed on December 02, 2017)

[11]AnupSurendranath, For a More Inclusive Ballot, The Hindu, Available  at:  www.thehindu.com/opinion/lead/for-a-more-inclusive-ballot/article5000188.ece#comments   (Accessed on December 02, 2017).

[12] Ibid.

[13]R. Balaji, Party-post ban sought on convicted, Available at:https://www.telegraphindia.com/india/party-post-ban-sought-on-convicted-190463 (Accessed on December 02, 2017).

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