When I read the news reports about Supreme Court of India passing an Order that prevents persons in police custody from contesting elections, even if they are not convicted of any crime yet, I could not believe my ears. This disbelief and shock was not a result of any sympathy towards criminal politicians. It shocked me for it went against the ideas of principles of natural justice and the law as I understood it. I was also concerned about the fall out of such a decision, on our electoral politics and democracy.
When I reacted on Twitter about this news, I used a caveat “IF this news is true’ for I still hoped that it was a case of misreporting. However, all my hope was in vain. When I finally read the Order in Civil Appeal Nos. 3040-3041 of 2004, issues by a Bench of J. A K Patnaik and J. Sudhansu Jyoti Mukhopadhaya, dated July 10, 2013, news reports were proved right, and my faith in the wisdom of our highest Court, wrong. An Order containing just 884 words, has indeed caused a situation that can turn dangerous for our democracy. Court was dealing with a decision that can have serious implications for our democracy, which is one of the basic features of our Constitution, yet the Order is not a speaking order when it came to the most important part of it. I say this with lot of pain as I have tremendous respect for the apex Court of this country. Let me explain.
In this Appeal, the Supreme Court upheld an earlier order of Patna High Court. The gist of the Order is that a person who has lost the right to vote in election is not an ‘elector’, and, therefore, can neither vote, nor contest in an election.
The Supreme Court Order supports the above finding on the basis of a reading of the Representation of the People Act, 1950 and the Representation of the People Act, 1951, as follows:
(1) According to Section 4 and 5 or of the 1951 Act, for membership of Loksabha and state legislative assemblies respectively, a person must be an ‘elector’.
(2) The term ‘elector’ is defined in the 1951 Act as “a person whose name is entered in electoral rolls of the constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act”.
(3) “Section 16(1)(c) of the 1950 Act provides that a person shall be disqualified for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections”.
(4) Section 62 of the 1951 Act is titled "Right to vote" and it provides in 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.
Problem is that the Order does not state how Section 62 that deals with “Right to vote” affects either the definition of ‘elector’, or Section 4 or 5 of the 1951 Act, dealing with qualification for contesting elections. The Supreme Court was clearly reading an independent section that deals with Right to vote into another independent clause that defines ‘elector’, to deny those people in police custody their legitimate right to contest elections. It is also unfortunate that the Court did not find it necessary to explain the logic or principles of interpretation behind this combined reading of two independent provisions. That, in my humble opinion, is not only bad in law, but also a sure case of judicial overreach.
There are two rights involved in an election. First is the right to vote, and the second is right to contest. Laws passed by the Parliament are very clear in its intention to keep the two rights different. Let us elaborate the laws further.
Right to Vote: Section 62 of the 1951 Acts deals with the Right to vote in elections: This relevant provisions of the section reads as follows:
62. Right to vote.—
(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of by any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(5) 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:
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.
A reading of the above sub-sections clearly shows the intention of the Parliament in passing the law. It is to disqualify person from voting if (i) the person is not on the electoral rolls, (ii) the person is suffering from any disqualification under Section 16 of the 1950 Act, or (iii) the person is confined in a prison, under whatever circumstances other than a preventive detention.
Right to Contest Elections: Law is silent about the right to contest elections. It only prescribes qualifications and disqualifications for becoming a member of Parliament or Legislative Assemblies. Barring certain special clauses that deals with reserved constituencies, the relevant clauses from 1951 Act, on qualifications are as follows:
4. Qualifications for membership of the House of the People- A person shall not be qualified to be chosen to fill a seat in the House of the People, unless—
(d) in the case of any other seat, he is an elector for any Parliamentary constituency
5. Qualifications for membership of a Legislative Assembly.—A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless—
(c) in the case of any other seat, he is an elector for any Assembly constituency in that State
So the essential qualification in both cases is the necessity of being an ‘elector’ within the respective jurisdiction.
Before we consider the disqualifications, let us look at this key term ‘elector’ as defined in 1951 Act:
2. Interpretation.—(1) In this Act, unless the context otherwise requires,—
(e) "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
The highlighted portions clearly indicates that the only conditions to be met, to become an elector are- name in the electoral roll, and no disqualification under section 16 of 1950 Act. Please note, there is no reference to Section 62 or right to vote.
That takes us to Section 16 and 19 of the 1950 Act, which read as follows:
19. Conditions of registration- Subject to the foregoing provisions of this Part, every person who —
(a) is not less than eighteen years of age on the qualifying date, and
(b) is ordinarily resident in a constituency,
shall be entitled to be registered in the electoral roll for that constituency
16. Disqualifications for registration in an electoral roll.—
(1) A person shall be disqualified for registration in an electoral roll if he—
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:
Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.
A plain reading of the above provisions shows that the Parliament had considered disqualifying from the electoral rolls, those who are disqualified from voting, and in its wisdom (and rightly so), decided to restrict such disqualifications to only two cases mentioned in Section 16 (1) (c):
(i) under the provisions of any law relating to corrupt practices
(ii) other offences in connection with elections
It may also be noted that the Parliament had expressly included additional disqualifications for membership of Parliament and State Legislatures under Sections 8 to 10A of Chapter III of 1951 Act.
Clearly, Parliament did not consider it necessary or prudent to apply Section 62 disqualifications on right to vote, to Section 16 disqualifications on right to registration in electoral rolls. It cannot even be said that Parliament omitted to consider it, since they have though it fit to add two specific disqualifications mentioned under Section 16 (2) (c), apart from those disqualifications under Chapter III.
The above provisions clearly establish that reading of Section 62 with Section 4 or 5, and section 2 (e) of the Act is not valid under any principles of interpretation. In fact, Parliament wanted clause 2 (e) to be read with Section 62, and not the other way round as Section 62 (1) incorporates being an ‘elector’ as a necessary condition for getting the right to vote. Hence, the right to vote and right to contest elections are two distinct rights, with different implications. However, Supreme Court chose to incorporate Section 62 into the definition of ‘elector’, without giving the logic behind doing so.
Therefore, a reading of law, “a person, who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police is …. not an "elector" and is, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951” has no sanction in statute.
If the Supreme Court wanted to make a new law to this effect, it should have clearly said so. It cannot use the power to make laws based on a wrong reading of express provisions in a statue.
Before concluding, let me state why this Order can be dangerous to our democracy. We have a multiparty system under which we have seen many a maverick leaders assuming power. Every State Govt, the Central Govt, Police officers and Judges- all have the power to get someone in police custody on some cooked up charges, at least for some time. Bogus criminal cases against political opponents are as common as criminal politicians, in our country. If a government, or any of the other powers mentioned above wants to ensure that a particular leader or party is to be defeated in elections, they only have to ensure police custody of the concerned person or persons, for a short period when election process is on. By the time the person manages to get free from the police custody, it might be too late, and people might be cheated out of the democratic right of electing their choices. Think of the election that took place just after the emergency when lot of opposition leaders were still in jail.
Another problems with this Order is in the presumption of guilt and criminality even before the persons are charged by a court. Principle of natural justice that declares a person innocent until proven guilty is given a burial, for no reason. Until now, political challengers had the protection of courts and law of the land when those in power misuse their position to stop the former. Now, they have lost that protection, at the very hands of the protector of last resort!
If political challengers are not given a level playing field and are left at the mercy of those in power, democracy will be in danger. Those who are opposed to ruling regime will be in police custody, elections reduced to a farce, and people left with no option other than that we are now witnessing in countries like Egypt and Syria. When we make a law, we must also consider its potential misuses, especially those with grave consequences. Therefore, with all due respect, I still hope the Supreme Court will realize the folly, and the danger, and review this Order in the larger interest of Democracy, Rule of Law, and Natural justice.
P.S: This post is prepared I good faith, and out of my own concerns and respect for Democracy, Rule of Law, and Natural justice. There is no intention whatsoever, to disrespect the judiciary. I will be happy to receive corrections, if any, on the letter or spirit of the Order or concerned provisions of law.