Jailed politicians can't contest polls, says SC

In a path-breaking ruling, the Supreme Court has declared that a person in jail or in lawful custody cannot contest elections.

The Supreme Court, while disposing of a petition by a chief election commissioner, has said that since the person in jail or custody loses his right to cast vote, which is an essential requirement for being a member of Parliament or State assembly, he or she cannot contest elections. On Wednesday, while passing an order on two PILs, the court struck down a provision in the electoral law which protected a convicted lawmaker from disqualification on the grounds of pendency of appeal in higher courts.

The verdict on jailed contestants has been described as a major legal step to cleanse politics of criminals. But, there is an equal apprehension of its misuse by a party in power to keep political adversaries at bay.

A bench of Justices A K Patnaik and S J Mukhopadhaya passed the judgment while dismissing an appeal filed by the chief election commissioner against a 2004 Patna High Court verdict.

Through the judgment, the bench has merely clarified the existing legal position, the ignorance of which politicians had exploited over the years by contesting elections despite being behind bars. Noted socialist George Fernandes and Janata Dal-United leader Sharad Yadav had successfully fought elections in the 1970s when they were in jails.

Prominent politicians like former Gujarat home minister Amit Shah, DMK leaders A Raja and Kanimozhi and Suresh Kalmadi, facing different criminal charges, may not be able to contest elections if their bail get cancelled by the court.

The apex court noted that Sections 4 and 5 of the Representation of the People (RP) Act, which stipulate qualification of an MP and member of state legislature respectively, clearly stated that the aspirant must be an elector (voter) for any Parliamentary or assembly constituency in that state.

According to Section 62 (5) of the RP Act, dealing with the “Right to vote,” 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.

Taking this logic, if a person does not have a right to vote, he, as a result, cannot contest election as well.

Dealing with a PIL filed by NGO “Jan Chaukidar and Others,” the Patna High Court in 2004 held that a person in lawful custody “will not be” a voter even though his name is not struck off from electoral rolls. Thus, the elector will not be qualified, it added.

“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 RP 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,” the bench said.