Background

In 2004, a Public Interest Petition was filed in Patna High Court, by Jan Chaukidar, an NGO, in wake of several malpractices in elections reported in Bihar. In its judgment, the Patna High Court in Jan Chaukidari vs. Union of India — upheld by the Supreme Court in 2013— all those in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election.

The judgement relied on section 4(d) of Representation of People Act, 1951 which says that one of the qualifications for membership of Parliament or State legislature is that the contestant must be an ‘elector’. Since Section 62(5) of the Act prevents those in lawful custody from voting, those in such custody are not qualified for membership of legislative bodies.

This verdict was challenged by Chief Election Commissioner and others in the Supreme Court. On 10th July 2013, a divisional bench, comprising of Justice AK Patnaik and Justice SJ Mukhopadhaya, upheld the verdict of Patna High Court. It was pointed out that section 62(5), clearly lays down that any person, who is under the lawful custody of the police, or under the sentence of imprisonment or transportation or otherwise, is not allowed to vote, and since the person does not qualify as an elector, he cannot stand as a candidate for election to the House.

This judgement was followed by a reaction by the Union Parliament which passed the Representation of People (Amendment and Validation Act) 2013. It amended section 7, 62 and 43 of the RPA, 1951. The major amendment by this act was that of section 62, wherein, it inserted a proviso, that suggested that even if a person is prohibited from voting due to being in police custody or in jail, as long as his name is entered on the electoral roll he shall not cease to be an elector. This implies that he can file nomination for an election. Section 4 of the amendment introduced the retrospective effect. It made the act to be applicable from 10th of July, thus totally nullifying the Supreme Court’s ruling.

After the passing of the Amendment Act of 2013, a PIL (Manohar Lal Sharma v. Union of India) was filed in Delhi High Court. The Court upheld the Constitutional validity of an amendment to the Representation of People Act that allowed people jailed before conviction to contest elections. The reasoning behind the judgment was that extending curtailment of the right to vote of a person in prison to the right to stand in election would, leave the door open for practice of ‘vendetta politics’ by ruling parties.

Furthermore, a Supreme Court Bench headed by Chief Justice H.L. Dattu on December 07, 2017, dismissed a petition filed against Delhi High Court’s order which upheld the Constitutional validity of an amendment to the Representation of People Act that allowed people jailed before conviction to contest elections. Hence, the present legal position on this

issue is that a prisoner, other than the one under preventive detention, is not entitled vote but can contest elections.