Prisoner's right
As per Section 62(5) of the RP Act, 1951, a person confined in prison or under police custody is explicitly barred from voting. It says no person shall vote at any election if he or she is confined in prison (whether under a sentence of imprisonment, transportation, or authorised) or is in lawful custody of police.
There are five types.
- Bail
- Prisoners released on bail are allowed to vote. Once out on bail, under trial, or a convict if the sentence is suspended, they are no longer confined or in custody, so they can cast their vote.
- Police custody
- Persons in police custody are denied voting rights while he is in police custody.
- Preventive detention
- Persons under preventive detention are allowed as a sole exception.
- Persons held under preventive detention laws are allowed to vote via postal ballot.
- Convict
- Convicts are denied their voting rights while serving in prison.
- Under trials
- Undertrials are also denied voting while in judicial custody, despite being presumed innocent until proven guilty.
Constitutional validity or provision/supreme court observation
In the landmark case of Akhil Chandra Pradhan versus Union of India (1997), the Supreme Court upheld that
- The restriction aims to keep individuals with a criminal background away from elections and prevent the criminalization of politics.
- Practical constraints, such as deploying extra forces and managing logistics, justify the restriction.
- Article 14 permits reasonable classification. As a result, prisoners need to be treated separately.
Voting versus contesting dichotomy
A under trial in jail, can't vote, but they can contest an election (unless convicted for a specific offence resulting in a sentence of 2+ years)
Issues
Under Section 4 and 5 of the RP Act, a person must be an elector to contest an election to the Lok Sabha or a State Legislative Assembly. However, Section 2(1)(e) defines an elector as a person whose name is entered in the electoral roll and who is not subject to any disqualification to vote. This forms the basis of the petition.
Patna High Court ruling in 2004
In an NGO named Jan Chaukidari filed a PIL questioning how an individual in jail/custody could contest an election. The High Court linked Sections 62(5), which deprives prison/custody detainees of voting, with the definition of an elector. It ruled that if a person can't vote they cease to be an elector and therefore they cannot contest elections.
This matter was challenged in the Supreme Court in the Chief Election Commissioner vs. Jan Chaukidari (2013) case. In the case, the Supreme Court upheld the Patna High Court judgement. This created a major crisis: any political leader or individual arrested or placed in police or judicial custody prior to filing nomination was automatically disqualified for the election. As a result, the RP Act was amended in 2013 with retrospective effect under Section 7 and Section 62(5).
Under Section 62(5), Parliament added a proviso clarifying that even if a person is prohibited from voting under Section 62(5) due to being in prison or police custody, their name entering the electoral rolls remains valid, and they do not cease to be an elector. Section 7 was amended again. It specified that the disqualification for contesting elections is exclusively governed through Section 8, and temporary custody under Section 62(5) is a temporary restriction on voting, not a statutory disqualification from contesting.
Grounds for disqualification from contesting election
Section 8 of the RP Act, 1951
section 8 of RPA, 1951 deals with disqualification of lawmakers upon conviction for certain offences.
Section 8(1), Section 8(2), Section 8(3) states that a candidate or legislature convicted of a specific offence stands disqualified from contesting or holding for a period of imprisonment and an additional 6 years after release (if the sentence of imprisonment is 2 years or more)
Earlier, Section 8(4) was there, which provided a three-month window for a sitting MP or MLA to file an appeal, and disqualification remained suspended until pending appeal disposal.
Constitutional basis
Article 102 and Article 191 of the Constitution have empowered Parliament to lay down laws for the identification of membership.
Lily Thomas vs. Union of India, 2013
In this case, the Supreme Court struck down Section 8(4) and held that Parliament lacks power under Article 102 and 191 to create a differential standard for candidate entry versus membership. In another case, that is, Lok Prahari versus Union of India (2018), the Supreme Court clarified that a bail suspension or grant of bail does not lift disqualification. However, if a higher court grants an explicit stay on the conviction itself, the disqualification ceases to operate under Section 8, and membership will be restored.