Behind Bars & Ballots : How Laws Apply When Jailed Persons Win Elections?

“The ballot is more potent than the most powerful gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner,” -Anoop Baranwal v. UOIIn the 18th Lok Sabha elections, the two Members of Parliament emerged victorious while being confined in the prison. Amritpal Singh from Punjab's Khadoor Sahib and Sheikh Abdul Rashid, popularly known as Engineer Rashid from Baramulla, Kashmir were elected as Members of Parliament after contesting as independent candidates.In April 2023 Amritpal, head of organisation Waris Punjab De, was arrested and detained under the National Security Act, 1980 and thereafter in March a second detention order was passed against him by District Magistrate, Amritsar.Rashid has been in jail since 2019 after he was charged by the NIA under the Unlawful Activities (Prevention) Act in an alleged terror funding case.It is pertinent to note that neither of the members has been convicted yet. Amritpal is under preventive detention under the National Security Act, a law allowing the government to detain individuals for up to 12 months without pressing formal charges. Rashid is an under-trial prisoner. The law does not prohibit a person under preventive detention or under trial from contesting elections. However, there are certain restrictions if the elected member is convicted, which will be discussed in this article.Right To Contest ElectionSection 62 (5) of the Representation of the People Act, (RP Act) bars a lawfully imprisoned person (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) from voting. A 2013 amendment in the law provides that the person even if barred from voting shall not cease to be an elector, whose name has been entered in the electoral rolls. There is no such prohibition under the Act to contest election if the candidate is imprisoned and awaiting trial.In 2018, a Constitution Bench of the Supreme Court refused to hold that candidates should be disqualified from contesting elections if charges have been framed against them in criminal cases. The Court, while acknowledging that criminalisation of politics was a serious issue, said that it was for the Parliament to lay down the criteria for disqualification and that the Court cannot add to the grounds specified in the statute.In 2022, the Supreme Court held that the right to contest elections, although not a fundamental right, is a right conferred by statute.Time and again, various High Courts have clarified that the right to contest elections from jail does not imply that the candidate receives special immunity from the law or the right to obtain relief solely for the purpose of contesting elections.The Madhya Pradesh High Court in October 2023 refused to suspend the conviction of an aspiring State Assembly election candidate observing that, “Right to contest the election is not a fundamental right.”“Right to contest the election is not a fundamental right. It is a statutory right. From the facts of the case, it is apparent that the appellant has been convicted for offence under Section 307 of IPC for three counts and his presence has been established at the spot and a knife has also been recovered from him. Apart from that, he is a habitual offender having eight criminal cases”, Justice Vijay Kumar Shukla observed in the order.The Delhi High Court in Election Commission Of India vs Mukhtar Ansari & Anr observed that right to contest election from jail “cannot imply that the candidate gets a right to be released from jail for campaigning”.The Court said, even though a person with criminal background and antecedents would not be a desirable person to contest the elections, the legislation does not debar him from contesting the elections. Thus, as long as the Representation of the People Act, 1950 qualifies a citizen to contest an election, he cannot be prohibited from contesting the same by filing the nomination. However, a right to contest the election cannot imply that the candidate gets a right to be released from jail for canvassing as a candidate for being elected, the Court added.“If the candidate is in custody for an alleged offence, it would be the discretion of the Court to release him or not, depending on the facts and circumstances of the case. When a person in custody fills up a nomination as a candidate, he does not get a vested right to be released for canvassing. He runs the risk if not released on bail to contest election from custody. Though the fact that the candidate has to contest the election may be a relevant factor for grant of bail but that is not the only consideration. Bail to an accused contesting election cannot be granted dehors the parameters of grant of bail laid down by the Supreme Court in various decisions,” it observed.Recently, while granting bail to former MP Dhananjay Singh in connection with a kidnapping and extortion case, the ...

Behind Bars & Ballots : How Laws Apply When Jailed Persons Win Elections?

Aiman J. Chishti

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