"Registration of an FIR and confinement is not sufficient to bar a person from contesting election", observes the SC while dismissing a plea challenging the 2013 amendment to the Representation of the People Act, 1951

The Supreme Court on Friday dismissed an appeal filed challenging the Delhi High Court’s verdict of February 6 earlier this year, upholding the constitutional validity of an amendment to the Representation of the People Act, 1951 allowing undertrials, except convicts, to contest elections, which was earlier barred by the Apex Court.

 ________

"Registration of an FIR and confinement is not sufficient to bar a person from contesting election", said the Supreme Court

                                                                                                                                             ________

 

(Supreme Court of India, New Delhi)

 Dismissing the appeal, a Bench headed by Chief Justice H.L. Dattu said. "If there is conviction and sentence, we can understand but the registration of an FIR and confinement is not sufficient to bar a person from contesting election." 

Earlier, the Parliament had passed the Representation of the People (Amendment and Validation) Act, 2013 (Number 29 of 2013) adding a further proviso to sub-section (5) of Section 62 of the R.P. Act, 1951, to the effect that if a person who is enrolled in the electoral roll is confined in a prison or in lawful custody of police, he will continue to be an elector notwithstanding the prohibition against voting under the said sub-section.

The Amendment to the Representation of the People Act, 1951 had been introduced last year by Parliament to get over the July 10 judgment of the Apex Court in The CEC vs. Jan Chaukidar and Ors [ CA Nos. 3040-3041 of 2004] wherein the Apex Court had held that a person, who is in jail or in police custody, cannot contest election to legislative bodies, bringing to an end an era of under trial politicians fighting polls from behind bars. The Apex Court had said that only a voter can contest election and a person in police custody has no right to vote.

The Representation of the People (Amendment and Validation) Act, 2013 (Number 29 of 2013) contained a validation clause providing that nothing contained in any judgment, decree or order of any court, tribunal or other authority shall have any effect on the amendments made to Section 7 and Section 62 of the Act by the amendment Act.  This effectively meant that the position as obtained prior to the Apex Court’s judgment of 10.07.2013 would continue to apply. 

Though the Centre had sought for a review of the Apex Court’s judgment of July 10, the Supreme Court, on November 19 last year, had dismissed the Centre's plea saying it is not necessary to look into the issue in view of amendments brought about by Parliament to the Representation of People Act.

Considering the challenge to the Amendments brought about to the Representation of the People  Act, the Delhi High Court had observed that not allowing an arrested accused or an undertrial to contest election on the ground that he has no right to vote while incarcerated "would leave the door open for vendetta politics". 

"Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of 'vendetta politics' by ruling parties...All that a politician/ruling party-in-power would need to do to prevent rivals from contesting an election is to ask the police to file a case and to arrest the rivals," it had said.

The Supreme Court concurred with the ratiocination of the Delhi High Court and hence, dismissed the appeal.