Those in jail can’t fight elections: Supreme Court

New Delhi: A person, who is in jail or in police custody, cannot contest election to legislative bodies, the Supreme Court has held, bringing to an end an era of undertrial politicians fighting polls from behind the bars.

add_main_imageIn another pathbreaking verdict to prevent criminal elements from entering Parliament and state assemblies, the apex court ruled that only an “elector” can contest polls and he ceases the right to cast vote due to confinement in prison or by being in police custody.

The court, however, made it clear that disqualification would not be applicable to person subjected to preventive detention under any law. Referring to the Representation of People Act, a bench of justices A.K. Patnaik and S.J. Mukhopadhaya said that the Act (sections 4 and 5) lays down the qualifications for membership to the house of the people and legislative assembly and one of the qualifications laid down is that the person must be an elector.NextMAds

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 election.

The court passed the order on an appeal filed by the Chief Election Commissioner and others challenging a Patna high court order banning 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.

In a landmark judgement on Wednesday, the same bench had struck down a provision in the Representation of People Act that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts. The bench had also made it clear that members of parliament, members of legislative assemblies and members of legislative councils would stand disqualified on the date of conviction.