A day after it debarred politicians from continuing in office after being convicted, the Supreme Court Thursday ruled that a person, who is in jail or in police custody, cannot contest elections to any legislative bodies, bringing to an end an era of under-trial politicians fighting elections from behind the bars. In another path-breaking verdict to prevent criminal elements from entering Parliament and Assemblies, the apex court ruled that only an "elector" can contest the polls and he/she ceases the right to cast vote due to confinement in prison or being in custody of police.
The court, however, made it clear that disqualification will not be applicable to person subjected to preventive detention under any law. Referring to the Representation of Peoples' Act, a bench of justices AK Patnaik and SJ Mukhopadhayay said the Act (Section 4 & 5) lays down the qualifications for membership of Parliament and Assemblies and one of the qualifications laid down is that he must be an elector.
The bench said Section 62(5) of the 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. Reading Sections 4, 5 and 62(5) together, the apex court came to the conclusion that a person in jail or police custody cannot contest 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 to contest 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 Parliament or the Assemblies," the apex court said. In a landmark judgement on Wednesday, the same bench had struck down a provision in the Representation of People’s Act that protects 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. Legal experts said the two verdicts will force political parties to make sure that candidates facing criminal charges are not fielded. The court had in its yesterday's judgement held that Parliament exceeded its powers by enacting the provision (Section 8(4) of the Representation of People’s Act) that gives a convicted lawmaker the power to remain in office on the ground that appeals have been filed and pending.
The sub-section 8(4), which was struck down, said a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.
