Jailed, arrested netas barred from polls
Conviction not necessary, says top court as it upholds Patna HC ruling
NEW DELHI: A person cannot fight the Lok Sabha or assembly elections from jail even if not convicted, the Supreme Court has ruled, signalling an end to the practice of politicians contesting polls from behind bars awaiting trial.
Upholding a 2004 Patna high court verdict, a bench of justice AK Patnaik and justice SJ Mukopadhyaya said a person would cease to be an “elector” and cannot vote when in custody (both police and judicial). Such a person would be disqualified from fighting elections as the Representation of the People (RP) Act allows only qualified “elector” to contest, it said.
The ruling, which spells more trouble for the political class in an election year, may be yet another check on criminalisation of politics but has the potential to be misused. Political rivals, especially the ruling party or combine, can target each other in the run-up to elections.
The bench delivered the verdict on Wednesday along with its landmark ruling that declared unconstitutional a provision under the Representation of the People Act that allowed convicted MPs and MLAs to continue in office, pending appeal in a higher court.
“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 sub-section (5) of Section 62 of the 1951 (RP) 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 bench said. The Election Commission had challenged the HC verdict.
The court, however, clarified that the disqualification would not be applicable to a person put behind bars under preventive detention.
Constitutional expert and senior Supreme Court advocate Rajeev Dhawan said there was no infirmity in the Patna HC judgment. He said the top court’s verdict, too, was in keeping with the law. “A person who cannot vote cannot stand for elections until a statutory change is brought in the RP act,” Dhawan said.
The judgment brings to an end the practice of undertrial politicians fighting elections from jails. Those likely to be hit will include Jagan Reddy of Andhra Pradesh, who has now been in jail for over a year in a disproportionate assets case. There will be many more such politicians across India.
A fallout of the judgment could be the ruling parties foisting cases on rivals, making lawful custody ground for disqualification from poll process. Five states are due for assembly polls later this year and the big one -- the Lok Sabha elections – is due early 2014.