Amritpal Singh, a separatist who has been detained since April 23, 2023, under the strict National Security Act (NSA), is said to be running as an independent candidate for Punjab's Khadoor Sahib Lok Sabha in the 18th Lok Sabha Elections. Delhi Chief Minister Arvind Kejriwal, meanwhile, is not permitted to cast his franchisee.
While individuals facing charges, including those under the NSA, have contested elections, undertrials who haven't been convicted have not been allowed to exercise their voting rights.
Moneycontrol briefly explains the legal paradox in these cases:
Why Singh can contest but not Kejriwal
As Singh has not been convicted yet, he is eligible to contest the election.
A person in jail, like Singh, can file their nomination papers with the help of a representative. If a jailed candidate wins the election, they can be released from jail to take the oath, as there is no provision for administering the oath inside the prison, according to experts.
According to Section 8 of the Representation of the People Act-1951, individuals convicted and sentenced to a jail term of two years or more are automatically disqualified from contesting elections for a period of six years from the date of their release. This provision ensures that those convicted of serious offenses are temporarily barred from participating in the electoral process.
In a landmark judgment in July 2012, the Supreme Court declared that individuals in jail or police custody could not contest elections to legislative bodies - a decision widely applauded for putting an end to the practice of undertrial politicians running for office from behind bars.
Just four months later, nonetheless, the Parliament passed the Representation of the People (Amendment and Validation) Bill, 2013, which upheld the right of incarcerated individuals to contest elections, effectively overturning the apex court's ruling.
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A representative, however, cannot cast a vote on someone's behalf. According to Section 62 (5) of the Representation of the People Act, 1951, no person can vote in any election if they are in lawful police custody or confined in a prison.
It states that no person shall vote in any election if they are confined in a prison or in the lawful custody of the police. The legality of this provision was first addressed by the Supreme Court in 1983 in the case of Mahendra Kumar Shastri v. Union Of India.
The same situation might apply to CM Kejriwal.
The Supreme Court, on May 4, 2023, dismissed a plea challenging this section, and seeking voting rights for prisoners.
"The constitutional validity of the provision under Section 62(5) of the Representation of People Act, 1951 has been upheld by a two judge bench of this Court and later by a three judge bench of this Court. In view of these decisions we are not inclined to entertain the petition", Chief Justice of India DY Chandrachud-led bench had stated during the hearing.
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Article 326 of the Constitution of India establishes the principle of adult suffrage for elections, meaning that all citizens above a certain age have the right to vote. However, this right can be restricted by the Constitution or any law based on factors, such as non-residence, unsoundness of mind, involvement in a crime, or engagement in corrupt or illegal practices.
Singh, leader of 'Waris Punjab De', will be contesting the Lok Sabha elections from Dibrugarh Jail, while Kejriwal is currently incarcerated in Tihar Jail.
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