Setting right an anomaly

By quickly amending the electoral law and apprising the Supreme Court of it, the government has managed to set right an anomalous legal situation for those who faced disqualification merely because they were in prison during election time. On July 10, 2013, the Supreme Court upheld a Patna High Court judgment that said being in prison or in lawful police custody will disqualify a person from contesting elections. Under Section 8 of the Representation of the People Act, 1951, conviction in a criminal case, entailing any sentence in respect of some offences and a jail term of at least two years in others, will disqualify a person from contesting elections to Parliament and the State legislatures. Another provision, Section 62(5), bars voting by a person “if he is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.” It makes an exception for those in preventive detention. It effectively means that anyone in police custody or in jail, whether convicted or not, is ineligible to vote. The High Court accepted an argument that if those in prison do not have the right to vote, it means they are not ‘electors’; and that if one is not an elector, one is ineligible to contest. This is because only registered voters can contest elections. It was an interpretation that perfunctorily overturned a sound principle in electoral law that one suffers disqualification only on conviction and not at any earlier stage in criminal proceedings.

The Supreme Court upheld the High Court order the same day it handed down a landmark verdict striking down Section 8(4) of the Act, a provision that protected sitting legislators from immediate disqualification on conviction. Perhaps overzealous about cleansing the electoral system, it failed to note that the High Court had mixed up the temporary bar on voting imposed on a person in jail with loss of basic eligibility to contest. Losing the right to vote for a particular reason could not have been interpreted as amounting to removal from electoral rolls. The government filed a review petition, but also decided to amend the law. The amendments now enacted make it clear that the bar on voting by prisoners will not mean that they will cease to be voters. And the term ‘disqualified’ will be limited to the listed circumstances and cannot be expanded by inference. It is not uncommon for political activists to be arrested on the basis of a first information report. If the courts’ interpretation were to be accepted, it would mean potential candidates could be disqualified from contest at the FIR filing stage itself. This is one instance in which legislation to overrule a court verdict was eminently justified.

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Printable version | Sep 29, 2022 7:39:31 pm | https://www.thehindu.com/opinion/editorial/setting-right-an-anomaly/article5376458.ece