Undertrials can contest election, says Delhi High Court

The Delhi High Court Thursday dismissed a plea seeking to bar a person who is in jail or in police custody from contesting elections, saying it would leave the door open for practice of "vendetta politics".

Giving relief to jailed legislators and parliamentarians, a division bench of Chief Justice N.V. Ramana and Justice Manmohan said it can not equate the right of an undertrial to that of a convicted person.

"Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door for practice of 'vendetta politics' by ruling parties," the bench said.

The high court verdict came on a public interest litigation filed by advocate M. L. Sharma, claiming that the amendment to the Representation of the People Act made by parliament in September last year was unconstitutional and for the sole benefit of the political parties.

However, the bench remarked that to bar any person who is in jail or in police custody from contesting an election on the ground that it would lead to criminalisation of politics is a case of the remedy being worse than the disease.

"All that a politician/ruling party-in-power would need to do to prevent rivals from contesting an election is to ask police to file a case and to arrest the rival," it added.

The bench further clarified that "our criminal justice system is based on the principle of 'innocent until proven guilty', we can not presume our undertrials in custody to be guilty as far as right to contest election is concerned".

"We are of the view that the impugned Representation of People (Amendment and Validation) Act 2013 is within legislative competence of parliament," the bench held while dismissing the PIL.

On the sideline, the bench noted that it was "trite that right to vote is not a fundamental right or constitutional right, but only a statutory right".

Filing the PIL, Sharma had challenged the Sep 29, 2013 amendment in the Representation of People Act by the government. The amendment in the act enables arrested people to contest elections as a person does not cease to be an elector only by reason of his being in police custody or in imprisonment.