I Chief Election Commissioner etc. Vs. Jan Chaukidar (Peoples Watch) and Ors., hon’ble Supreme Court of India on 10.07.2013, upheld the view of Division Bench (‘DB’) of the Patna High Courton 30 April, 2004 in Jan Chaukidar (Peoples Watch) vs. Union Of India (Uoi) And Ors, , 2004 (2) BLJR 988. The upheld Judgment, in humble view of the author, has raised an important question, i.e., can “lawful custody of police” be a test of “Criminality” to keep electoral contestants out of poll arena?
The DB had held that: “A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.”
The Hon’ble Supreme Court, in its Judgment , without referring to the rival arguments led before it, held that: “we have heard learned counsel for the parties and we do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of subsection (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.”
For the true appreciation of the ratio, as contained in Para 31 of the Patna High Court’s Judgment it is important to see the immediate context of scandalous electoral situation in which the petition was heard.It was a situation where criminals/absconders in wide public gaze, thumbing nose at Law, ‘jumping bail and hoodwinking the Court but landing up before polling officer to cast their vote, with or without connivance of the police’. So as may be seen the court observed, the real issue which piqued the court, that: “…Such persons have defiled Parliamentary democracy and broken the rule of Law. Deeply disturbed with the situation the court stated that “this should be a public shame for the state administration. What are the remedial measures in this?”.
So in that scandalous context, prevalent at that time in the State of Bihar, the Division Bench of the Patna High Court was looking for the remedial measures to keep out the criminal elements from elections which were causing a defilement of the electoral process and went on to equate criminality with ‘lawful custody’.
The High Court further reasoned that the Law dealing with disqualification as referred to in the Constitution, is Section 62 of the Representation of the People Act, 1951. The Supreme Court has reflected on it and upheld it.
Zeroing on the real issue before it, the Patna High Court statedthat: “The debate before the Court is particularly on Subsection (5) of Section 62.” This Section concerns the Right to Vote and prescribes disqualifications from such right. Its subsection (5) provides 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; Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force.” Interpreting the position of law the court opined that suffice it to say that it is not anybody’s case that a person who will stand for election, call him a candidate or an “elector”, will not have the inherent qualification, call it generic or otherwise, of being a voter first.But Sub-section (5) is about those accused of crime, imprisoned, under-trials, convicts, or transportation or otherwise, or in the lawful custody of police.
In response to the argument, that ‘those lodged in jails, though deprived of the right to vote under the Act, are yet “electors” and entitled to stand for election”,the court felt the need to clearly define an “elector” and a “voter”. After referring to various authorities, the court concluded: “An “elector” is, thus, a person legally entitled to vote. If a person is in prison, under the Representation of the People’s Act, 1951, that person is debarred from voting, unless he or she is specifically under preventive detention. He or she is not legally entitled to vote at the time. Thus, the prisoner is not an “elector” and cannot stand for office.” In support of this proposition, the court also relied on the ratio in theMahendra Kumar Shastri vs. Union of India and Anr.AIR 1983 SC 299,which maintained that: “The disability which is imposed under Section 62(5) of the Representation of the People’s Act is equally applicable to all persons similarly situate mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing people’s representatives.”
Referring to its understanding of this subsection, the Patna High Court observed that the disqualification is applicable to all those who participate in an election,whether it is the voter, an elector or a candidate. The court reasoned that: “To understand its true import, one needs to understand that this Right conferred, whether on a voter or on a candidate, who has to be a voter, recognizes the qualification as a generality of all who come within the arena of elections.”
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
In the context of electoral reforms, which the Jan Chaukidar judgment also focused upon, is to identify stepsto keep criminals (an accused can be termed criminal only after conviction and not before) and criminality out of electoral process. But the true test of “criminality” before being proved through a trial, in the humble opinion of this author, can only be the framing of charge, if at all, as is also contained in sub-section 1(i) of Section 33-A Representation of the People’s Act, 1951, though only for the information of the electorates.This section forms the basis of ratio which the Patna High Court in its judgment, among other series of judicial precedents, refers to. Besides, the long standing demand of the Election Commission has been regarding decriminalizing the electoral process. It has been articulated so on its website: “Commission has made a proposal for disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more.”
More so, the first principle of our criminal jurisprudence is the “presumption of innocence until proved guilty” and it remains the true determinant of criminality in our jurisprudence. But given the anxiety at the increasing criminalization of politics and politicization, the important institutional stakeholders therein like courts, legislature and the Election Commission, have come with their own prescriptions to fight the menace. The trend, as can be seen, has been the gradual dilution of the first principle so as to decriminalize politics. The dilution is the result of the increasing criminalization of politics and conclusion of a trial, especially of an influential person, remaining an endless process. In that regard, Parliament amended Representation of the People’s Act, 1951in 2002 and inserted Section 33-A which has made it mandatory for the electoral contestants/candidates to disclose their criminal history, if any. It compels them to make categoric statements as to whether they have been charge-sheeted for an offence punishable with 2 years and also to disclose their previous convictions. So as may be seen even Parliament only necessitated a disclosure by the contestants so that the electorate may be enabled to make an informed choice as to their elected representatives and does not make allegations of criminality as a disqualification. The Patna High Courtcorrectly regarded the insertion of section 33-Aby way of amendment as an acknowledgement by Parliament of its increasing concern with the criminalization of politics. As reasoned in Para 21 of its judgment,the newly-added Section does not keep anyone out of the election, but it does help explain the intent of the legislatureconcerning criminality.
Soon after the affirmation from the Supreme Court, the Election Commission shot off letters to the Chief Electoral Officersof all States and Union Territories referring the ratio of the Patna HC and SC judgments.The fallout was the immediate barring of candidates from elections in case they were in lawful police custody. But the larger question which emerges and needs immediate attention is whether “lawful custody” can be a test for “criminality” as is sought to be kept out by the Patna High Court from the electoral process. This question becomes more important in current times where it may provide an easy handle for politicians to do away with inconvenient political rivals by just manipulating the system and causing “lawful custody” for a particular member. More so, when police itself has been found to be hand-in-glove with dispositions of the ruling parties, the decision may help in causing “lawful custody”.With due respect, it is stated that the affirmation of the apex court with the Patna High Court judgment may not be a great precedent, as it may unsettle the long held position on the test of criminality. Besides, no reference to any arguments led before it by the contesting parties deprives the common man of the benefit of being educated on such an important debate which has now been crystallized into a law.It is perhaps the time to bring in an intermediate test of criminality for the electoral purposes based on framing of charges by court and not lawful police custody.
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