Why Accused Persons in Prison Can Contest Elections but Not Vote

What’s in today’s article?

• Why in News?
• What is the legal status of the right to vote and the right to be elected?
• Disqualification on conviction for certain offences and associated challenges
• Bar against the right to vote for confined persons

Why in News?

Amritpal Singh, the jailed head of the pro-Khalistan outfit Waris Punjab De, announced his intention to contest the Lok Sabha elections from Punjab's Khadoor Sahib seat on June 1. 

Despite facing criminal charges, he can run for office unless convicted. However, like other accused persons in Indian prisons, he will be barred from voting in the upcoming elections.

What is the legal status of the right to vote and the right to be elected?

• The right to vote and the right to be elected are ‘statutory rights’
  • In 1975, the Supreme Court in Indira Gandhi v Raj Narain recognized free and fair elections as part of the Constitution's basic structure, allowing laws violating this principle to be struck down.
  • However, the Apex Court has held that the rights to elect and be elected do not enjoy the same status.
  • In 2006, a five-judge Bench in Kuldip Nayar v. Union of India ruled that voting is a statutory right, not a fundamental right, and can be regulated by laws enacted by Parliament.
    • The same was held for the right to be elected by the Bench.

Disqualification on conviction for certain offences and associated challenges

• Bar against contesting elections only after conviction
  • Section 8 of the Representation of People Act, 1951 (RP Act) is titled “Disqualification on conviction for certain offences”. 
  • It mandates that individuals convicted of specified offences are disqualified from contesting elections to Parliament or state legislatures from the date of conviction. 
  • Additionally, they face a six-year disqualification period from contesting elections, starting from the date of their release.
  • This disqualification only kicks in once a person has been convicted and does not apply if they have only been charged with criminal offences.
• Challenges 
  • Section 8 of the RP Act challenged in SC
    • In 2011, a petition filed by the Public Interest Foundation argued that persons who have criminal charges framed against them or file false affidavits regarding their criminal history should also be disqualified.
    • However, a five-judge bench unanimously held that only the legislature could alter the RP Act.
    • In 2016, a petition was filed in SC for the permanent disqualification of convicted persons. The case is still ongoing. 
  • Delays in criminal cases against MPs and MLAs
  • In November 2023, the Supreme Court noted delays in criminal cases against MPs and MLAs. 
  • It ordered Chief Justices of all High Courts to register a suo motu case titled “In Re: Designated Courts for MPs/MLAs.” 
  • The High Courts were instructed to ensure the “expeditious and effective” disposal of these cases. 
  • However, a report in April 2024 showed 4,472 such cases are still pending.
• Exceptions to disqualification
  • ECI's Power to Modify Disqualification Period
    • In 2019, the Election Commission of India (ECI) used its power under Section 11 of the RP Act to reduce the disqualification period for Sikkim Chief Minister Prem Singh Tamang. 
      • As per Sec 11, EC may, for reasons to be recorded, remove any disqualification under this Chapter (except under section 8A) or reduce the period of any such disqualification.
    • He had been released after a one-year prison sentence for misappropriating funds and subsequently won a bye-election.
• Apex court staying the conviction
  • Disqualified MPs or MLAs can contest if their conviction is stayed on appeal.
  • In 2019, the Supreme Court ruled that staying a conviction removes the associated disqualification.

Bar against the right to vote for confined persons

• Voting Restrictions Under Section 62 of the RP Act
  • Section 62 of the RP Act restricts voting rights, stating that no person shall vote if they are confined in prison or in police custody, except for those in preventive detention.
• SC on such restrictions
  • Section 62 of RP Act bars individuals with criminal charges from voting unless released on bail or acquitted.
  • In 1997, the Supreme Court upheld this rule in Anukul Chandra Pradhan v. Union of India.
  • It rejected the argument that it violated the right to equality by discriminating against undertrials and those unable to pay bail.
• Grounds on which SC rejected the argument that it violated the right to equality
  • The court re-affirmed that the right to vote was a statutory right and could be subject to statutory limitations. 
  • The court held that there is a resource crunch as infrastructure would have to be provided and police would have to be deployed. 
  • A person in prison because of their conduct cannot claim equal freedom of movement, speech and expression. 
  • Last, restrictions on prisoners’ right to vote are reasonable as it is connected to keeping persons with criminal background away from the election scene.

Q.1. What is Representation of the People Act, 1951 (RP Act)?

The Representation of the People Act, 1951 (RP Act) is a key legislation in India that provides the framework for the conduct of elections to the Parliament and state legislatures. It addresses qualifications and disqualifications for membership, the administration of elections, the resolution of election disputes, and corrupt practices.

Q.2. What is section 8A of RP Act 1951?

Section 8A of the Representation of the People Act, 1951 deals with the disqualification for membership of Parliament and state legislatures due to corrupt practices. It specifies that an individual found guilty of corrupt practices by the High Court, and whose order has been confirmed by the Supreme Court (if appealed), shall be disqualified for six years from the date of the order.

Source: Why can accused persons in prison contest polls but not vote? | Indian Kanoon