After ruling instant disqualification of convicted MPs and MlAs, the Supreme Court has went a step further by barring politicians from contesting polls even from behind bars, no matter if they may not have been convicted. This apart, it has also held that a person who is confined in prison or is in lawful custody of police cannot vote. And if one is not a valid elector, then he is not eligible to contest polls.
In effect, the court’s verdict will have a far-reaching impact on decriminalisation of politics as political parties will now have to make sure that candidates facing criminal charges are not fielded.
While the earlier verdict of the court applied to lawmakers yet to be convicted, this order makes the ban almost complete as it would be applicable to public representative facing trial or awaiting decision on their appeal if they are convicted or their appeal is dismissed.
A person, who is in jail or in police custody, cannot contest election to legislative bodies, the Supreme Court ruled, thereby bringing to an end the vogue of politicians fighting polls from behind bars. This judgement came along with the apex court’s verdict on Wednesday disqualifying MPs and MlAs from the date of conviction that warrants over 2 years imprisonment.
The court passed the order on an 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 House of the People or the legislative Assembly of a State,” the apex court said.
In a bid to prevent criminal elements from entering Parliament and State 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 would 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 that the Act (Section 4 &5) lays down the qualifications for membership of the House of the People and legislative Assembly 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. Simply put, those like Jagan Reddy or Gopal Kanda would not be able to contest elections.
The same Bench had on Wednesday struck down a provision in the Representation of Peoples 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