As the Rajya Sabha just approved the Bill for negating the July 10, 2013, Supreme Court verdict banning persons in jail/or those in lawful detention from contesting elections to the State legislatures and Parliament, constitutional experts feel that the apex court order has complicated the issue.

They also referred to another verdict, delivered the same day, declaring ultra vires Section 8 (4) of the Representation of the People Act, 1951, that allowed convicted MPs, MLAs, MLCs to continue their membership if they had appealed against their conviction/sentence within three months of the date of judgment.

According to noted constitutional expert and former Lok Sabha Secretary General P.D.T. Achary: “It is wrong to think that as soon as the order of conviction is made by the trial court (against an MP/MLA or MLC), they will stand disqualified.”

Talking to The Hindu, he pointed out that according to Article 103, “the question whether a sitting member of the House has become subject to disqualification shall be referred to the President whose decision shall be final. Before giving his decision, the President will obtain the opinion of the Election Commission (EC) and act on that opinion.” “There is no automatic and instant disqualification. It has to wait for the President’s decision.”

On the court ban on jailed persons from contesting polls, Mr. Achary pointed out that the decision was based on an interpretation of Section 62(5) of the Representation of the People Act, 1951. This section deals with the right of an elector to vote.

This negatively worded section listed the categories of electors who are not permitted to vote in a particular election. Sub-section (5) said that if a person was confined in a prison (i) under a sentence of imprisonment or transportation or otherwise or (ii) in lawful custody of the police, he shall not vote.

“The SC judgment says that since the man in prison or under custody is not allowed to vote, he is not an elector. Since he is not an elector, he cannot stand in election as only an elector can stand as a candidate.”

Who is an elector?

“The RP Act defines an ‘elector’ as a person whose name is entered in the electoral roll of a constituency and who is not subject to any of the disqualifications mentioned in Section 16 of the RP Act, 1950. Section 16 lists three grounds for not registering a person on the electoral roll: (i) he is not a citizen of India, (ii) he is of unsound mind and (iii) he is disqualified from voting under the provisions of a law relating to corrupt practices and other offences in connection with electoral offences.”

Conviction of a person for an offence unrelated to elections was not a ground for disqualification. “If there is no disqualification, the name of the elector cannot be removed from the roll. Only if the name of the elector is removed from the roll, he will not be able to contest the election, not otherwise.”

Section 62(5)j of RP Act did not disentitle a person to be an elector because imprisonment for an offence unconnected with electoral offences like bribery (Section 171E of IPC) and undue influence or personation (Section 171F of IPC) did not disqualify the elector.

Similarly, mere police custody did not create any disqualification under the law. “Then how will an elector cease to be an elector? And, so long as an elector remains on the roll, how can he be disqualified from contesting an election,” Mr. Achary wanted to know.

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