Reported By Shruti Sethi.
Rajya Sabha on August 27, 2013 approved a proposal to maintain the right of those in jail to contest polls. This came as a response to the Supreme Court’s Judgement in Civil Appeal Nos. 3040-3041 of 2004, The Chief Election Commissioner Etc. V. Jan Chaukidar (Peoples Watch) & Ors. where it upheld the decision of the Patna High Court that any person confined in prison or lawful police custody is not entitled to vote under the Section 62 of The Representation of the People Act (RPA), 1951. SC was of the view that Right to vote is a statutory right. Persons in the lawful custody of the Police 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. It is privilege to vote, which privilege may be taken away. The court had, however, made it clear that disqualification would not be applicable to persons subjected to preventive detention under any law.
The Representation of the People (Amendment and Validation) Bill, 2013, which was passed by the House, seeks to add a proviso to sub-section (2) of section 62 of the Representation of People Act to state that a person cannot cease to be a voter while in detention as his or her right is only temporarily suspended. One of the amendments states that as the name of the jailed person continues to be on the electoral rolls, he or she also continues to be an elector and can file nomination for an election. The amendment if passed will have retrospective effect and shall come into effect from July 10, 2013; the day the Supreme Court gave the judgement.
Criticising the SC’s decision Law Minister Kapil Sibal had said that there is a general “negative perception” in the country that all politicians are criminals. “Courts are enthusiastic to prove us so, even if we are not so.” He also said the verdict of a court to bar persons in jail from contesting elections was “clearly erroneous” as the matters or right to vote and right to be on electoral roll were being dealt by separate sections in the Constitution and till proven guilty, everyone was to be taken as innocent. “We are fallible, we commit mistakes and the judges can also commit mistakes. The judiciary should be extremely careful while giving judgements which can affect the polity of the country,” he said ((available at http://articles.economictimes.indiatimes.com/2013-08-27/news/41499174_1_law-minister-kapil-sibal-supreme-court-judiciary)).
This amendment clearly illustrates the tussle head between the Judiciary and Legislative, which is not new to India. After examining the Supreme Court order, government had filed a review petition, but instead of waiting for the outcome, it felt the need to “suitably” address the situation, the Statement of Objects and Reasons of the bill states. This has happened innumerable times earlier some of which include the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment and very recently the retrospective tax amendment after the Vodafone Case. In a Democracy where Supreme Court is the Apex Court and its decisions unchallengeable such actions by the Parliament raise questions as to the Supremacy and legitimacy of the decision given by the Courts.