India, being the world’s largest democracy, has a complex and vibrant electoral process. However, one aspect that has sparked significant debate is the eligibility of jailed candidates to contest elections. In the 18th Lok Sabha, Amritpal Singh and Sheikh Abdul Rashid, who were released on temporary parole, took oaths as members of the Lok Sabha on July 5, 2024. Amritpal Singh (31) is lodged in a prison in Assam’s Dibrugarh district for cases registered under the National Security Act (NSA) and Rashid (56) is in Delhi’s Tihar jail in a terror-funding case registered under the Unlawful Activities (Prevention) Act (UAPA). Singh received a four-day parole due to travel from Assam to Delhi, while Rashid received a two-hour parole for taking the oath. As a result, many questions come into mind: Can a jailed person contest an election? Can he/she participate in the working of Parliament and so on?
Let us understand what the India Constitution and other Indian laws say on this issue.
Indian Law on Jailed Person Contesting Election
In India, the Representation of the People Act (RPA), 1951, governs the electoral process and sets the criteria for who can contest elections. The law differentiates between convicted individuals and those who are merely under trial.
As per the RPA, jailed people can contest elections in India, provided that they are not convicted. That is, the Indian law does not prohibit the people having criminal charges against them from contesting elections unless they are convicted. However, such individuals cannot cast their vote as per the Indian judicial system, as is applicable to the other accused individuals throughout the country.
The RPA forms the basis for conducting different elections, i.e., parliamentary (Lok Sabha and Rajya Sabha) elections and state legislative assembly elections. With the implementation of this act, the right to vote is ensured to every citizen of the country.
The RPA deals with a large number of issues related to elections. These are constituency delimitation, voter qualifications and disqualifications, candidate nomination, electoral roll preparation, polling conduct, counting of votes, and results declaration. The RPA clearly states the detailed electoral procedures, and ensures transparency, fairness, and accountability of the election process.
The act also states different provisions regarding the exercise of the right to vote and the right to be elected with respect to the individuals charged with criminal cases against them or who are in prison.
Some of the provisions of the RPA are as follows:
Enactment, purpose, scope, and amendment In 1951, B.R. Ambedkar introduced the RPA, while the provisional Parliament enforced it prior to the first general elections in newly independent India. The main objective of the RPA was to ensure that the electoral processes are executed smoothly throughout the country. It deals with the legal framework for holding elections, such as addressing election disputes, criteria for qualification and disqualification of candidates, systematic election procedures, and election malpractices.
Over time, several amendments have been made to the RPA so that changing electoral challenges can be effectively tackled. These amendments include the transfer of election petitions from lower courts to higher courts and the elimination of election tribunals.
The application of the RPA to several offices The RPA is applicable to:
Prime minister The RPA has provisions regarding the disqualification of prime minister, i.e., the situation when he/she fails to meet the criteria of qualifying as a member of Parliament (MP).
President and vice-president The act provides for dealing with disputes and doubts concerning the election of the president and vice president and their disqualification.
Speaker The act also mentions the criteria for disqualifying the Lok Sabha Speaker. These criteria can be regarding the certification of bills done wrongly, i.e., not according to the Indian Constitution.
Disqualification: some factors
Convicted representatives Under the RPA, MPs and members of legislative assemblies (MLAs) can get disqualified if they are convicted of a crime. That is, the jailed persons are disqualified from contesting elections only if they are convicted but not merely because of charges put against them. Upon disqualification, the seat must be vacated immediately.
Representatives holding office of profit Under the RPA and Articles 102 and 191 of the Indian Constitution, offices of profit cannot be held by the elected representatives.
Conviction and undertrial According to Section 8 of the RPA, 1951, any individual who has been convicted of certain offences and sentenced to imprisonment for two years or more is disqualified from contesting elections. This disqualification lasts for six years after the release from prison. However, certain offences like promoting enmity between groups, bribery, and offenses related to corruption result in immediate disqualification upon conviction.
However, the law treats undertrial candidates differently. An individual who is under trial and has not yet been convicted is not disqualified from contesting elections. This stems from the legal principle of ‘innocent until proven guilty.’ Thus, even if a candidate is in jail undergoing trial, he/she can legally contest an election.
Though jailed individuals (not convicted) can contest elections, they are not allowed to cast their votes in the current elections. According to Section 62(5) of the RPA, “No person shall vote at any election 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.”
Supreme Court Ruling
The Supreme Court of India has played a pivotal role in interpreting laws related to elections from time to time. In the landmark judgment Lily Thomas vs Union of India and Ors. (2013), the court ruled that elected representatives who are convicted of serious crimes would be immediately disqualified from holding office. The Supreme Court held that the enactment of a provision to protect the sitting MPs and MLAs is beyond the powers of Parliament. The court observed that disqualification of the sitting MPs and MLAs should be similar to those who are to be chosen as MPs or MLAs. The court ruled that Parliament can enact laws defining disqualification for MPs and MLAs, but cannot prevent the vacation of the house seat due to disqualification under Articles 101(3)(a) and 190(3)(a) by delaying the disqualification date or enacting a provision protecting sitting MPs and MLAs from conviction-related disqualification.
This judgment reinforced the need for clean politics but did not alter the provisions for undertrial candidates.
Recent Developments
During the 18th Lok Sabha elections, Amritpal Singh, the jailed Sikh preacher, won the elections from the Khadoor Sahib constituency and Sheikh Abdul Rashid won the elections from the Baramulla constituency. Strangely enough, despite being in the jail facing trial, both of them have a constitutional mandate. These candidates were not allowed to attend the proceedings of the 18th Lok Sabha. However, they have to take oath as MPs, which is their constitutional right. Later, both the jailed politicians were sent to Parliament for taking oath. After oath, they were sent back to the jail. In several earlier instances, the Constitution, though not clearly specified in it, allowed the jailed leaders to take oath but on temporary parole not bail. For example, recently, Sanjay Singh, the AAP leader, who was in prison, was allowed to take oath for the second term as Rajya Sabha member. Similarly, Anant Singh (2020), Lalu Prasad Yadav (2013), and Jayalalitha (2020), won elections from jail and took oath as MPs. Besides, in 1977, George Fernandes won in the post-Emergency elections contested from prison and was granted permission to take oath on temporary parole.
Besides, if jailed leaders need to attend a parliamentary proceeding or have to vote on some important issue of the government, they are allowed to move court.
Under Article 101 (4) of the Constitution, if an MP does not attend any meetings for more than 60 days, his/her seat is considered vacant. While as per the Rule 242 of Rules of Procedure and Conduct of Business in Lok Sabha, a member of parliament, after taking the oath, should inform the speaker about their absence from the House in writing. The speaker further discusses the matter with the Committee on Absence of Members. The committee then deliberates on the decision if such members be permitted not to attend the House proceedings and gives recommendation. The speaker puts this recommendation for voting in the House.
Concerns Related to Jailed Candidates Contesting Elections
The issue of jailed candidates contesting elections is contentious and has generated significant concerns in the Indian society.
Presumption of innocence vs public morality The legal principle that a person is presumed innocent until proven guilty underpins the allowance for undertrial candidates to contest elections. However, critics argue that allowing individuals facing serious criminal charges to contest elections undermines the public trust in the democratic process and can lead to the criminalisation of politics.
Criminalisation of politics One of the major concerns is the increasing number of candidates with criminal backgrounds in Indian politics. Critics argue that the current legal framework allows individuals with serious criminal charges to exploit the legal system, contest elections, and potentially influence the judicial process. This has led to calls for reforms to prevent such candidates from contesting elections until their cases are resolved.
Electoral integrity and voter choice Supporters of the current system argue that disqualifying undertrial candidates could lead to the misuse of legal processes by political opponents to eliminate competition. They also assert that voters should have the final say, and if they choose to elect an undertrial candidate, it reflects the will of the people. However, this raises questions about the impact on electoral integrity and the quality of representation.
Conclusion
The issue of jailed candidates contesting elections in India presents a complex challenge that touches upon fundamental legal principles, electoral integrity, and the quality of democracy. There have been various attempts to address this issue. The Law Commission of India, in its 244th report, recommended that individuals against whom charges have been framed by a court should be disqualified from contesting elections. However, these recommendations have not yet been implemented. Additionally, the Supreme Court has called for fast-tracking cases involving elected representatives to ensure that the legal process is not unduly delayed.
The RPA states the statutory regulations by which the right to contest elections and the right to vote are administered. This ensures that the elections are fair, accountable, and just. The right to vote is not regarded as a fundamental right. On the contrary, the right to contest elections has exceptions and issues that shape electoral principles and processes. While the current legal framework upholds the presumption of innocence, it also raises concerns about the potential for the criminalisation of politics. Striking a balance between these competing concerns requires careful consideration and possibly legal reforms that ensure both fairness and the integrity of the electoral process. As India continues to evolve as a mighty democracy, this issue will remain a critical area of debate and potential reform.
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