Source: The Indian Express

Introduction

Supreme Court has established the precedent that free and fair elections are an integral part of the "basic structure" of the Constitution of India, and any legislation or policies contradicting this principle may be invalidated. While the right to vote is not recognized as a fundamental right in India, the judiciary has affirmed its significance in upholding democratic values and ensuring the legitimacy of governance.

The announcement by one of the candidates contesting in 2024 Lok Sabha elections, who is lodged in Assam's Dibrugarh jail, from Punjab's Khadoor Sahib seat raises complex legal and constitutional questions regarding eligibility and the integrity of the electoral process.

What are the Major Cases on Free and Fair Elections?

• Indira Gandhi v. Raj Narain (1975)
  • In this landmark case, the Supreme Court held that free and fair elections constitute a vital component of the Constitution's "basic structure."
  • This precedent established that any legislation or policies contravening this principle could be subject to judicial invalidation.
• Anukul Chandra Pradhan, Advocate, Supreme Court v. Union of India. (1997)
  • In 1997, the Supreme Court dismissed a challenge to Section 62(5) of Representation of People Act, 1951.
  • The provision effectively prohibits individuals with criminal charges framed against them from voting, except for those in preventive detention, who are granted an exception.
  • This means that individuals must either be released on bail or acquitted to exercise their voting rights.
• Kuldip Nayar v. Union of India (2006)
  • A five-judge Constitution Bench emphasized that the right to vote, or the right to elect, is merely a statutory right.
  • This classification suggests that voting is not accorded the status of a fundamental right and could theoretically be revoked.
  • The Supreme Court has differentiated between the rights to elect and be elected, despite free and fair elections being considered crucial to the constitutional framework.
  • Similarly, the right to be elected was also categorized as a statutory right by the Bench, implying that laws passed by Parliament could regulate both these rights.

Why is Contesting an Election Considered a Fundamental Right While Casting a Vote is Not?

• Contesting an election is regarded as a fundamental right because it involves an individual's autonomy and freedom to participate in the democratic process by presenting themselves as a candidate for public office.
• It embodies the principle of political expression and allows citizens to contribute actively to governance.
• On the other hand, casting a vote, while essential for democracy, is not explicitly recognized as a fundamental right in India.
• It is treated as a statutory privilege subject to certain limitations, reflecting the government's regulatory authority over electoral processes.

Which Provision Bar Against Contesting Elections Only after Conviction?

• Section 8 of the Representation of People Act, 1951, titled "Disqualification on conviction for certain offences," mandates disqualification from contesting elections to Parliament or state legislatures for individuals convicted of specified offenses.
• The disqualification takes effect from the date of conviction and entails a six-year prohibition from contesting elections starting from the date of release.
• Notably, this disqualification applies solely to convicted individuals and does not extend to those merely charged with criminal offenses.
• Recent years have witnessed two significant challenges to Section 8 in the Supreme Court, underscoring ongoing debates surrounding disqualification criteria based on criminal convictions for election candidates.
  • The Public Interest Foundation's 2011 petition aimed to disqualify individuals with criminal charges or those providing false affidavits about their criminal record. However, the Supreme Court unanimously decided that only the legislature could amend the Representation of People Act.
  • In 2016, Ashwini Kumar Upadhyay petitioned for permanent disqualification of convicted individuals. The case is ongoing, and in November 2023, the Supreme Court directed High Courts to expedite cases against MPs and MLAs, with a report in April 2024 revealing 4,472 pending cases.

What are the Provisions related to Prisoners’ Right to Cast their Vote?

• The right to vote is a constitutional right under Article 326 of the Constitution.
• Under Section 62(5) of the Representation of the People Act, 1951, individuals in the lawful custody of the police and those serving a sentence of imprisonment after conviction cannot vote. Undertrial prisoners are also excluded from participating in elections even if their names are on the electoral rolls.
• Only those under preventive detention can cast their vote through postal ballots.

What are the Exceptions to Disqualification?

• The Election Commission of India (ECI) has the authority, under Section 11 of the RP Act, to reduce or remove disqualification periods.
• In 2019, ECI used the power to shorten the disqualification period for Sikkim Chief Minister, who won a bye-election for the Poklok Kamrang assembly seat after serving a one-year prison sentence for misappropriating funds in cow procurement.
• Disqualified MPs or MLAs can still run in elections if their conviction is stayed on appeal to a higher court, as ruled by the Supreme Court in 2019. Once a conviction is stayed, the disqualification resulting from it is suspended.
• In 2020, a former Bahujan Samaj Party MP convicted of kidnapping, sought a stay on his sentence from the Allahabad High Court to contest in Lok Sabha elections. Although granted bail, the court declined to stay the conviction, citing the importance of political integrity.

Conclusion

The announcement by one of the candidates contesting in 2024 Lok Sabha elections to contest elections from Punjab's Khadoor Sahib seat, despite being incarcerated, highlights the complex legal and constitutional challenges surrounding eligibility and the integrity of the electoral process in India.