The Election Commission (EC) has made it clear that since the Supreme Court has declared “persons in lawful custody — whether convicted in a criminal case or otherwise — cannot contest elections,” the order has to be implemented from the next poll, even if it is a by-election.

“The verdict has come from the highest court of the land, we have to implement the order even if a by-election to the parliament or legislature is announced by the Commission in the near future,” a senior EC official told The Hindu on Monday.

There were a lot of legal issues and grey areas involved, which needed to be discussed and only the government or any other persons concerned could seek further clarification from the Supreme Court. Even the relevant provisions of the Representation of the People (RP) Act, 1951, had to be amended keeping the latest verdict of the court as the base , he said.

Former Rajya Sabha member and noted lawyer R. Shanmugasundaram suggested that to put a full stop to the legal debate vis-à-vis right to contest polls by jailed persons, Parliament could amend the relevant provision of the RP Act and add the words “voting right cannot be curtailed,” as the court had delivered the verdict considering the provision which stated that a person in jail could not vote.

Mr. Shanmugasundaram pointed out that so far, as per the provisions, a person who was in legal custody could contest polls by sending his nomination through a proposer and take the oath of affirmation to the Constitution, as per Article 84(A), before an authorised officer (it could be a jail superintendent or a jailor or any other senior official). This was applicable even to those contesting the poll when they were touring abroad or hospitalised (the oath has to be taken before the Consular or diplomat/medical superintendent respectively).

The Supreme Court Bench, on July 10, dismissed the appeals filed by the EC and others against a Patna High Court judgment that in 2004 had held that when a person in custody was disqualified from voting, he or she must be disqualified from contesting in elections too.

In its order, the Bench said: “We have heard the 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.”

Meanwhile, sources in the EC said that legally, the question of whether a person’s nomination could be rejected because he was in jail could be decided by the Returning Officer (RO) only at the time of scrutiny. If the RO had no information about that particular candidate (whether he was in custody or not), the other candidates could produce relevant evidence and seek rejection of his/her nomination.

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