Cannot contest elections for legislative bodies from jail: Supreme Court

Reported by Eira Mishra

The Supreme Court had held that a person in jail or police custody cannot contest elections to legislative bodies, bringing an end to an era of under trial politicians fighting polls from behind bars.

The apex court has claimed that only “electors” are competent to contest elections. This would imply that a person behind bars, being incompetent to cast his vote is also ineligible to contest elections. This would go a long way in preventing persons with criminal backgrounds from becoming members of union and state legislatures. However, the court clarified that this disqualification is inapplicable to persons under preventive detention under any law.

A bench of justices A.K. Patnaik and S.J. Mukhopadhyay stated that MPs, MLAs and MLCs would face disqualified from the date of conviction. The landmark judgement has struck down a provision which protects convicted politicians from being disqualified to contest elections on the ground that further appeals are available with the Higher Courts.

The SC stated that Section 62(5) of the Representation of People’s Act says 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”. This Act lays down the conditions for a person to be eligible to contest elections. Careful reading of sections 4 and 5 gives that one essential condition is that a person himself be an elector, which a person in judicial custody is not.

With a combined reading of sections 4, 5 and 62(5), the SC gave its verdict disqualifying persons in jail or police custody from contesting elections.

The Chief election Commissioner and others had filed an appeal against a decision of the Patna High Court barring people behind bars from contesting polls. “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 subsection (5) of Section 62 of the 1951 act 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,” the apex court said.

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