Delhi Chief Minister has received interim bail from the Supreme Court to join his party’s campaign for the ongoing Lok Sabha elections until June 1, the last phase of the polls.
Background
In 1975, the Supreme Court in the case of Indira Gandhi v Raj Narain recognised that free and fair elections are a part of the ‘basic structure’ of the Constitution of India.
However the Supreme Court has held that the rights to elect and be elected do not enjoy the same status.
In 2006, in the case of Kuldip Nayar v. Union of India, the Supreme Court held that the right to vote (or the right to elect) is “pure and simple, a statutory right”.
This means that voting is not a fundamental right and can be repealed.
The same was held for the right to be elected by the Bench, ruling that laws enacted by Parliament could regulate both these statutory rights.
Bar Against Contesting Elections
Section 8 of the Representation of People Act, 1951 (RP Act) is titled “Disqualification on conviction for certain offences”.
No one is barred from contesting elections unless convicted. Even for convicted politicians, the disqualification is not more than 6 years after the expiry of the jail term.
This disqualification only kicks in once a person has been convicted and does not apply if they have only been charged with criminal offences.
Exceptions to Disqualification: The Election Commission of India (ECI) is empowered under Section 11 of the RP Act to “remove” or “reduce” the period of disqualification.
In 2019 the Supreme Court held that once a conviction is stayed “the disqualification which operates as a consequence of the conviction cannot take or remain in effect”.
Bar Against the Right to Vote
Article 326 of the Constitution of India provides voting rights in elections to the Parliament or the assembly based on adult suffrage.
Section 62 of the RP Act provides a series of restrictions on the right to vote.
Its sub-clause (5) states in broad terms “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”.
With an exception provided for those in preventive detention, this provision effectively bars every individual who had criminal charges framed against them from casting their vote unless they have been released on bail or have been acquitted.
Anukul Chandra Pradhan, Advocate, Supreme Court v. Union of India, 1997
The Supreme Court in this case rejected a challenge to Section 62(5) of RPA on four grounds;
The right to vote was a statutory right and could be subject to statutory limitations.
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”.
Restrictions on prisoners’ right to vote are reasonable as it is connected to keeping “persons with criminal background away from the election scene”.
