The Election Commission 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”, those in custody will be barred from contesting the August 21 by-poll from Mandya and Bangalore Rural Lok Sabha constituencies and Avanigadda Legislative Assembly segment. This will also apply to the August 22 by-election to the Karnataka Legislative Council from Mysore Local Authority constituency. While the LS constituencies are in Karnataka, the Assembly constituency is in Andhra Pradesh. The poll notification is scheduled to be issued by the respective Governors on July 27. The nomination for the Council by-poll will open on July 29.Informed sources in EC said the Supreme Court’s order has to be implemented as it has come from the highest court of the country. This will be the first time the order is going to be implemented. They added that on the day of scrutiny, if the Returning Officer is satisfied that any of the nominee for the poll was found to be in legal custody, his/her papers will be rejected. If the RO has any doubt or unable to cross-check the information on whether a person is in custody or not, he can seek the authentic information from the agency concerned (jail or police authorities or other law enforcers) and can even postpone the scrutiny of the papers of the person concerned till the RO is satisfied about the candidate’s whereabouts, sources added. A Division bench of the Supreme Court, on July 10, dismissed the appeals filed by 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 SC 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 in the writ petitions 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”.