Can a person behind bars contest elections in India? The legal perspective

Singh, chief of the 'Waris Punjab De' outfit, was arrested in April last year after being booked under the National Security Act (NSA).

This raises the question whether a jailed person can contest elections in India? The issue has been debated for long and has even reached courts, including the Supreme Court of India. And there have been innumerable politicians who have contested and won elections, while being behind bars. Let us dissect the nuances of the issue from the legal perspective.

What does the law say on jailed politicians?

First, no one is barred from contesting elections unless convicted. Even for convicted politicians, the disqualification is not more than 6 years post the expiry of the jail term.

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As per the existing laws, if a person is convicted and sentenced to a jail term not less than two years, he/she stands disqualified automatically from contesting elections for six years from the date of release. 

This rule is mentioned in Section 8 of the Representation of the People Act-1951, which deals with disqualification of politicians from assembly and Parliament, after being convicted.

"A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release," reads the Section 8(3) in the Representation of the People Act, 1951.

The six-year ban

The six-year ban on contesting elections for convicted politicians has reached courts time and again. Last year, in one of the cases, the Supreme Court was been urged to consider imposing a life ban on convicted lawmakers in certain offences, instead of the existing six-year ban.

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In September 2023, senior advocate Vijay Hansaria, who is assisting the top court as an amicus curiae in hearing of a PIL seeking speedy trial of politicians in criminal cases, had filed a report pitching for a life ban on lawmakers from contesting elections, if found guilty in an offence of moral turpitude.

On November 9, the SC issued guidelines to High Courts to monitor the speedy disposal of criminal cases against Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs). It didn't say anything on the life ban for convicted politicians.

The Rahul Gandhi case of April 2023

In April 2023, for example, Congress leader Rahul Gandhi was disqualified as a Member of Parliament (Wayanad) after his conviction in a defamation case by a court in Surat. The order was accordance with Article 102(1)(e) of the Indian Constitution read with Section 8 of the Representation of People Act, 1951. 

The order would have meant Rahul Gandhi would not have been able to contest election for eight years since April 2023 - two years of jail term followed by six years of disqualification post the release from the jail. 

But the disqualification was stayed by the Supreme Court and Rahul Gandhi was reinstated as Member of Parliament (MP)

Amending the rules

On July 2012, in a landmark judgement, the Supreme Court had held that a person, who is in jail or in police custody, cannot contest elections to legislative bodies. 

The judgement was hailed for potentially ending the culture of under-trial politicians contesting elections from behind the bars. The court had said a person in police custody has no right to vote.

Four months later, however, Parliament passed the Representation of the People (Amendment and Validation) Bill, 2013 that maintained the right of those in jail to contest polls, thereby negating the SC order.

The government has time and again opposed any effort to bar the convicted politicians from contesting election for the lifetime. In December 2020, the Union government opposed a plea to impose lifetime ban on convicted politicians. The Union Ministry of Law and Justice made this submission before the Supreme Court in a case related to electoral reforms.

Famous wins from behind bars

In the post-Emergency 1977 elections, socialist leader George Fernandes contested elections from Muzaffarpur in Bihar while he was still behind bars. Fernandes defeated the Congress candidate by around 3 lakh votes.

In 1996, don-turned-politician Mukhtar Ansari, who died last month, contested the Mau Assembly seat in Uttar Pradesh on a BSP ticket while he was in prison. Ansari won.

Former Union minister Kalpanath Rai, who was behind bars in 1996 in a TADA case, contested the 1996 Lok Sabha polls from behind bars and won the Ghosi constituency. Rai defeated Mukhtar Ansari. 

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Veteran SP leader and nine-time Rampur MLA Azam Khan won the Rampur Assembly seat by 55,000 votes while still in jail in Uttar Pradesh Assembly elections, 2022. Later, following his conviction in an alleged hate speech case of 2019, Khan was disqualified from the Assembly seat. Another SP leader Nahid Hassan contested the Kairana Assembly seat in 2022 from jail and won.

Late Shahabuddin won the Siwan seat from jail and won in 1999. He was later convicted of multiple murders and sentenced to life. RTI activist from Assam Akhil Gogoi contested the Assam Assembly polls in 2021 from Sibsagar seat while he was in jail and won.

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Published: 25 Apr 2024, 03:17 PM IST