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Updated: July 12, 2013 01:13 IST

Persons in lawful custody cannot contest polls: court

J. Venkatesan
Comment (30)   ·   print   ·   T  T  
A view of the Supreme Court of India. File photo
The Hindu A view of the Supreme Court of India. File photo

Convicted or not, rule applies to those in jail and police custody; not applicable to those out on bail

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.

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The law should be much much stronger by not allowing the tainted even to
vote or contest a gram panchayat level election.But by framing and
passing the current law has still a loop hole that the convicted can
contest election if he/she is on bail.What nonsense

from:  Misbah
Posted on: Jul 12, 2013 at 10:17 IST

This is really something which every citizen of this coutry should feel good at. Even for a smallest job we have conduct check happens in any organisation. How come a politician who claims to be the savior of the people can get rid of his/her conduct check.

from:  R Indra
Posted on: Jul 12, 2013 at 10:09 IST

I have read the editorial captioned "JUDICIAL OVERREACH" published today
in The Hindu. The Apex Court after long time is seeking to
purifying the democracy in this Country. But why people themselves could
not shun persons of criminal background?

from:  P.Padmnaabhan
Posted on: Jul 12, 2013 at 09:37 IST

The possibility of false cases being filed against contesting
candidates rendering them unable to contest is a distinct
possibility.

Some provision is essential to guard against this. In the hands of
an unscrupulous ruling party this can be a secret weapon. Even the
opposition parties can resort to this route to avoid a contest.

The Judiciary and the Executive should review the latest SC decision
and legal provisions must be enacted to safeguard interests of genuine
contestants..

from:  Veevip Sarathy
Posted on: Jul 12, 2013 at 09:11 IST

A most welcome decision by the apex court.
The judiciary has taken a firm stand on various issues and this decision
on the right to contest elections is a laudable move towards
decriminalization of politics. The sanctity of law and the electoral
process has diminished because of the politicians today.
In the light of today's manipulative politics, this decision is a
harbinger of hope.

from:  Mounica Kasturi
Posted on: Jul 12, 2013 at 08:46 IST

Thank you Very Much for a landmark judgement...hope it gets implemented soon....

from:  Rahul
Posted on: Jul 12, 2013 at 08:35 IST

Our SC is being hasty and imprudently activist. This outlandish overeach is only going to empower corrupt political parties and corrupt politicians to foist false cases against political rivals, both clean and themselves also corrupt, and put them in police and subsequent judicial custody pending slow and deliberately ponderous investigations spanning electoral cycles, to rid themselves of popular political figures, for electoral gain. Our judges are rash and insensitive to reality. Or, are they? Has the system been suborned? Can our top judges be so mindlessly thoughtless as to what goes on in our body politic for such a hasty and ill conceived decision? We as a people demand to be told of the detailed process leading to this shallow judgement. SC judges are also answerable to us, the people.

from:  Ramgopal Dass
Posted on: Jul 12, 2013 at 08:23 IST

Sir,
This is a second landmark judgment in a series interpreting certain
provisions of the Representation of the People's Act. It is a matter
of common sense that if a person has no right to vote and he or she is
not elector withing the meaning of the said Act, how can he or she
contest election or get elected ? Upholding of Patna High Court
judgment by the apex court is certainly heavy blow to the politicians
who are habitual law offender and visit jails time and again. Now,
this is for the government and the Election Commission to implement
the judgment in letter and spirit and should not seek review of the
judgment.

from:  BIMAL CHANDRA JHA
Posted on: Jul 12, 2013 at 07:34 IST

This should have happened long ago, thanks to honourable judge for at least making it possible now.

from:  Bharath
Posted on: Jul 12, 2013 at 07:28 IST

By the same analogy even MPs and MLAs in jail must not be allowed to vote
in Parliament or Assembly when crucial issues are put to vote.We have
seen the Tamasha of MPs being brought to Parliament to just to vote.This
must also stop.

from:  P N V Krishnan
Posted on: Jul 12, 2013 at 06:28 IST

It is one step forward to clear the political deck!

from:  gautam bandopadhyay
Posted on: Jul 12, 2013 at 06:27 IST

The editorial wants to play by the ideals of 'By the Book'. Yet, we know that political class does not care about 'the book', ethics, law or even judicial orders.
Inaction is an action to propagate the 'bad' of status quo.
The point is this: If the politicians fear vendetta politics, then they should put energy in ensuring that the legal system is fair and more free from political meddling. Presently, there is no reason for them to do so.
I think that the SC has slowly turned the wheel in favor of the country. The corridors of power must get it in their calculus that it is in their best interest to ascertain fair and fast legal adjudication. It might carry the Aam Aadami's interests in its wake. Therefore, in my opinion, criticism of the SC by the editorial is an overreach.

from:  Dr. Ajay
Posted on: Jul 12, 2013 at 03:04 IST

While SC is right in not permitting those who are in jail after punishment and not those who are to be charged or wrongful confinement/even who have been let on bail, since all are neither criminals or good citizens as well.Those who are charged with Murders, corruption, theft, rapism are to be taken into account as well

from:  vaidya
Posted on: Jul 12, 2013 at 02:43 IST

Section 62(5) of the Representation of the People Act,1951 is very clear saying that "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".
It is not,however, clear as to why the Chief Election Commissioner had gone into appeal before the Hon'ble Supreme Court against the Patna High Court which had passed order as per the law. Had the Chief Election Commissioner moved Supreme Court for clarification of the law in this behalf ? A whole case reading may throw light on this issue.

from:  Satyendra nath pandey
Posted on: Jul 12, 2013 at 01:14 IST

By this decision, true election will be happen this year

from:  Shakti Singh
Posted on: Jul 12, 2013 at 01:04 IST

Eventhough they not contest in Polls, however, they can Appeal and finish thier full term of 5 years while the Appeal status is still pending and also contest for the next terms of Polls. As long as we have the Appeal process like this we won't do anything new...

from:  Manikandan
Posted on: Jul 12, 2013 at 01:00 IST

Supreme Court appears to be right in this instance — if a person in jail
is not eligible to vote, how can he or she be eligible to fight an
election?

from:  Sachi Mohanty
Posted on: Jul 12, 2013 at 00:38 IST

these all rules in the favor of politicians. This should be applied even they are on bail. politicians always used to make law in the favor of their family members and their own.

from:  prabhakar pandey
Posted on: Jul 12, 2013 at 00:05 IST

Persons "on bail" also should have been prevented from contesting in elections, as that alone will give politicians the will, to not drag cases for ever. It's a shame that SC didn't see it that way.

from:  s m kumar
Posted on: Jul 11, 2013 at 23:57 IST

A person in custody or jail is still on the electoral rolls and so he is still an Elector. His disability to do the physical act of voting is a different issue. I think the court has made a wrong interpretation of Section 62.

from:  seetharaman
Posted on: Jul 11, 2013 at 23:42 IST

The recent ruling of supreme court which demands disqualification of
chargesheeted MPs & MLAs once they are convicted, is a welcome ruling.
Though it may help very less in cleaning our political class of
criminals, or people having a shaky background at least. Our judiciary
and its proceedings can be altered by any person who has money. And as
we see, many cases against our "representatives" take a lot of time to
reach their judgement, and usually bend and in favor of the powerful.
So, a more strict ruling is required if we really want to clean up the
mess. More preferably a chargesheet should be enough to disqualify
them. This may seem a little far-fetched, but will also keep the rest
in check.

from:  Prashant Alex Blake
Posted on: Jul 11, 2013 at 23:19 IST

In India given the fact that police, investigating agencies and to a certain extent even judiciary are not free from political interference, this new rule is bound to be exploited to settle political scores.

from:  Murli
Posted on: Jul 11, 2013 at 22:59 IST

It is indeed a happy augury that these judges living their cloistered lives in the Supreme Court found enlightenment and ruled that these criminal elements with the support of their political parties need to be eliminated from the election scramble and obtain the protection of these venerable institutions.At least one joker in the UP claimed that he can win elections sitting in his cell with a guffaw and proved it!. Such untoward things can now be a thing of the past.

from:  L.KRISHNAMOORTHY
Posted on: Jul 11, 2013 at 22:30 IST

At last our sacred parliament would get rid of those criminal MP's and MLA's who know nothing except disrupting parliament by shouting and abusing.

from:  Shailendra Kumar
Posted on: Jul 11, 2013 at 22:18 IST

Very appropriate and timely decision of SC. This verdict will certainly
change the direction and condition of indian democracy.

from:  sushil shukla
Posted on: Jul 11, 2013 at 21:55 IST

great to see supreme court has been sensible to this which had been
long pending. there is hardly any sense of urgency from any of our
political parties in India, where a criminal to become peoples'
representative is daily affair. such move will definitely interest
people in general towards politics and towards a new INDIA

from:  Sourabh Choudhury
Posted on: Jul 11, 2013 at 21:38 IST

Its a pathbreaking judgement of SC. And rightly argued that a voter can
only fought an election and voter can't vote from jail. Politics should
be a noble work and should work for upliftment of people only, any
criminal element not only malise politics but also shake the confidence
on our parliamentary system.

from:  rakesh
Posted on: Jul 11, 2013 at 21:33 IST

SC Justices A.K. Patnaik and S.J. Mukhopadhaya are to be CONGRATULATED
for starting THE GREAT CLEAN UP OF INDIAN POLITICS, 65 years after
independence!

The two SC verdicts offer a great opportunity to the political parties
and the voters. How far the parties will now go to clean up their act
(with AAP, since inception, committed to fielding clean candidates), the
voters will soon find out.

The current system is rotten to the core. So, even a partial clean out
is to be welcomed - for the process would have started, and the
public/politicians/media would have been engaged in a practical effort
to clean up Indian politics.

The voters and the media must remain alert to any subversion/dilution by
political parties, and both must insist upon changes - to strengthen
democracy, so essential to making India a prosperous and fair country.

from:  D Mahapatra
Posted on: Jul 11, 2013 at 21:24 IST

A long awaited, & a very very welcome move!
Thanks Sarvochch Nyayalaya (Supreme Court)!
Thanks Hindu for reporting it.

from:  Uday Singh Chauhan
Posted on: Jul 11, 2013 at 21:11 IST

Thanx to SC and some times i wonder if there was not independency of
Judiciary in Constitution, then what have happened...............

from:  SAURABH RAJPUT
Posted on: Jul 11, 2013 at 21:09 IST
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