Jailed person can't contest for lawmaker's post: SC

Gone are the days when a person convicted of a criminal offence and undergoing imprisonment could throw his hat in the election fray from behind the bars, as the Supreme Court has held that a person who is disqualified from voting is not qualified to contest election either to parliament or state assembly.

The apex court said Wednesday that when a person in lawful custody gets disqualified from being a voter, even though his name may still be on the voters list, he could also not contest an election to the Lok Sabha or state assembly from behind the bars.

A bench of Justice A.K. Patnaik and Justice S.J. Mukhopadhaya said this in their order while dismissing an appeal by the Chief Election Commissioner challenging the Patna High Court order by which it had held that though "the name (of a convict undergoing sentence) is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away".

The apex court said: "We do not find any infirmity in the findings of the high court that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 (Representation of the People) Act is not an elector and is therefore not qualified to contest the election to the house of the people or the legislative assembly of a state".

Referring to the Section 4 and Section 5 of R.P. Act, 1951 the court said that one of the qualification for the membership of Lok Sabha under Section 4 and state assembly under Section 5 is that a person must be an elector. For Lok Sabha, the elector must be in any parliamentary constituency and for assembly in any assembly constituency within the state.

The court said that Section 62 of the Act dealing with "Right to vote" provides in its sub-section (5) that "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".

However, this provision does not apply to a person under preventive detention.