PRISONERS RIGHTS IN
ELECTIONS - POLITY
News: Why can accused persons in
prison contest polls but not vote?
What's in the news?
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The Ongoing Lok Sabha polls highlight the voting
rights and Right to contest elections in India.
Key takeaways:
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A candidate in jail (whether convicted or not) has the ‘Right to be elected to Parliament’
but has no ‘Right to vote’.
Statutory Rights:
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In Indira
Gandhi vs Raj Narain (1975), the Supreme Court stated that free and fair elections are integral to the
basic structure of the Constitution.
○
However, the Court also held that neither the right to elect nor the right to
be elected holds the same status.
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In Kuldip
Nayar v Union of India (2006), a five-judge Constitution Bench affirmed
that the right to vote is purely a
statutory right, meaning it is not a fundamental right and can be denied.
○
The same applies to the right to be elected.
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The Court ruled that Parliament could regulate both these statutory rights through laws.
Disqualification Rule
under the RPA, 1951:
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Section 8 of the Representation of the People Act, 1951 (RPA)
mandates disqualification from contesting elections to Parliament or state Assemblies upon conviction for certain
offences.
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This disqualification starts from the date of conviction and lasts for six years
after the end of the sentence.
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However, this bar applies only after a person is convicted, not if they are merely charged
with criminal offences.
Section 8 of the RPA has
faced challenges in the Supreme Court:
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In 2011, the Public
Interest Foundation petitioned to disqualify persons with framed criminal
charges or false affidavits about their criminal history, but the SC ruled that
only the legislature could amend the RPA.
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In 2016, advocate Ashwini Kumar Upadhyay sought
permanent disqualification for convicted persons. This case is ongoing, and in
November 2023, the SC, noting delays in criminal cases against MPs and MLAs,
directed the Chief Justices of all High Courts to expedite these cases.
Exceptions to Provision:
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The Election
Commission of India (ECI) is authorized under Section 11 of the RPA to
“remove” or “reduce” disqualification periods.
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In 2019, the ECI reduced the disqualification
period for Sikkim Chief Minister Prem Singh Tamang, who had served a one-year
prison sentence for misappropriating funds. Tamang subsequently won a
by-election.
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The disqualified MPs or MLAs can also contest
elections if their conviction is stayed on appeal to a higher court.
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In 2019, the Supreme Court ruled that disqualification ceases to be
effective once a conviction is stayed.
No Voting Rights for
Jailed:
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Section 62 (5) of the RPA stipulates that individuals confined in
prison or in lawful police custody cannot vote in elections, with an exception
for those in preventive detention.
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This effectively bars individuals with criminal charges from voting unless they are released
on bail or acquitted.
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In 1997, the Supreme Court upheld this provision in
Anukul Chandra Pradhan vs Union of
India, affirming that voting is a statutory right subject to limitations.
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The Court reasoned that prisoners, due to their conduct, cannot claim equal freedom and
that restricting their voting rights is reasonable to keep individuals with
criminal backgrounds away from elections.
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This ruling has been used by the Supreme Court in
2023 and the Delhi High Court in 2020 to dismiss pleas for prisoner voting
rights.