People in jail can't fight legislative body polls: SC

Verdict brings to an end the era of undertrial politicians contesting elections

A person who is in jail or in police custody cannot contest election to legislative bodies, the Supreme Court has held, bringing to an end the era of undertrial politicians contesting elections from behind bars.

In another pathbreaking verdict to prevent criminal elements from entering Parliament and state Assemblies, the apex court has ruled that only an “elector” can contest polls and he/she ceases to hold the right to cast vote due to confinement in prison or being in police custody.

The court has, however, made it clear that the disqualification will not be applicable to persons subjected to preventive detention under any law.

Referring to the Representation of the People Act, a Bench of judges A K Patnaik and S J Mukhopadhayay said the Act (Section 4 & 5) laid down the qualifications for membership of the House of the People and Legislative Assembly and one of the qualifications laid down was that he must be an elector. The Bench said Section 62(5) of the Act held that no person should vote at any election if he was confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or was in the lawful custody of the police.

Reading Sections 4, 5 and 62(5) together, the apex court came to the conclusion that a person in jail or police custody could not contest an election. The court passed the order on a appeal filed by the Chief Election Commissioner and others challenging a Patna High Court order barring people in police custody 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 sub-section (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.

In a landmark judgment on Wednesday, the same Bench had struck down a provision in the the Representation of the People Act that protected a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts. The Bench had also made it clear that MPs, MLAs and MLCs would stand disqualified on the date of conviction.