The Supreme Court on Tuesday cleared the way for jailed politicians to contest elections, provided they are not convicted. The Supreme Court (SC) gave its nod to the related Constitutional amendment carried out by the Government and dismissed the review petition of the Centre as infructuous.
The SC, however, said the issue of validity of the amendment will be considered separately after an NGO, lok Prahri opposed the Centre’s petition and said it has challenged the amendment in Representation of Peoples Act in this regard. The court ended all proceedings arising out of its earlier order that barred jailbirds from entering the legislature. However, the bar against convicted politicians will still remain in force.
The bench of Justices AK Patnaik and SJ Mukhopadhyay allowed the request of the Centre to withdraw their review petition challenging the apex court’s July 10, 2013 order on the grounds that the fresh amendment would now hold fort. The bench said: “In view of the above amendment it is not necessary for us to continue with the review petition.”
The amendment was to apply retrospectively from the date of judgement as it removed the bar that operated against an elector in judicial custody or any lawful custody to contest elections. Clarifying its decision, the bench said: “By the Amendment Validation Act 2013, a person does not cease to be an elector only by reason of his being in police custody or in imprisonment and therefore can contest elections to the State legislature and Parliament.”
However, the Centre’s troubles were not over. A fresh petition was mentioned before the bench by one SN Shukla, who challenged the new proviso added to Section 62 (5), as being violative of the objective sought to be achieved by the Act. He said that the petition was listed for hearing on December 2 and objected to the Centre’s withdrawal of its review petition.
The Court told Shukla that his petition would be heard independently on the assigned date. He cited grave error in the new law titled ‘The Representation of Peoples (Amendment and Validation) Act 2013’ that was rushed through in the lok Sabha and passed within 15 minutes after a brief discussion. The Rajya Sabha cleared the Bill on August 27.
The SC’s July 10 order came on an appeal filed by the Chief Election Commissioner and others, challenging a Patna High Court order of 2004 barring people in police custody from contesting polls. The judges concluded: “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 bar was not to apply in cases of preventive detention.