In my last post related to this
topic, I said that an amendment has been brought by the Parliament in the
Representation of the People Act, 1951 to nullify the effects of C.E.C. v. Jan
Choukidar judgment. Here is an analysis of that amendment. This amendment act
is called the Representation of the People (Amendment and Validation) Act, 2013.
Old
Provision
Section
7 (b) of the Representation of the People Act, 1951 -
"disqualified" means disqualified for being chosen as, and for being,
a member of either House of Parliament or of the Legislative Assembly or
Legislative Council of a State.
New
Provision
Section
7 (b) of the Representation of the People Act 1951 -
"disqualified" means disqualified for being chosen as, and for being,
a member of either House of Parliament or of the Legislative Assembly or
Legislative Council of a State under the
provisions of this Chapter, and on no other ground.
Effect
of this amendment
The wordings of this amendment
are quite clear. Previously, there was no statutory bar on declaring a
candidate disqualified on the grounds which were not mentioned in Chapter III
of the Representation of the People Act, 1951. As per the case of C.E.C. v. Jan Choukidar, a candidate
could be disqualified on the basis of a conjoint reading of Section 16 of the
Representation of the People Act, 1950 and various sections [Section 2 (e),
Section 4, Section 5 and Section 62 (5)] of the Representation of the People
Act, 1951. But, this is no longer possible after this amendment. The
description of disqualification in the Section 16 of the Representation of the
People Act, 1950 and other provisions not mentioned in Chapter III of the
Representation of the People Act, 1951 can no longer be used and read to disqualify
a candidate under Section 7 (b) of the Representation of the People Act, 1951.
Thus, Section 7 (b) has precluded itself from all types of disqualifications
save mentioned in the Chapter III of the Representation of the People Act,
1951. This leaves no ambiguity while interpreting the said provision of law.
Old
provision
Section
62 (5) of the Representation of the People Act, 1951 - 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
sub-section shall apply to a person subjected to preventive detention under any
law for the time being in force.
New
Provision
Section
62 (5) of the Representation of the People Act, 1951 - 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
sub-section shall apply to a person subjected to preventive detention under any
law for the time being in force.
Provided further that by reason
of the prohibition to vote under this sub-section, a person whose name has been
entered in the electoral roll shall not cease to be an elector.
Effect
of this Amendment
In the case of C.E.C. v. Jan
Choukidar, the Supreme Court held that a person who has no right to vote ceases
to be an elector under the Representation of the People Act, 1951 and is
therefore not qualified to contest elections.
According to the court, when a
person is behind the bars, his right to vote gets temporarily suspended. Thus, he
is not allowed to vote even though his name is entered in the electoral rolls.
But, under article 326 of the Constitution of India, an essential qualification
to be a voter or an elector is to be able to vote. In this case, he is clearly
not able to vote by virtue of Section 62 (5). Hence, he ceases to be an
elector. And when a person ceases to be an elector, he is disqualified from
contesting elections (Section 4 and Section 5 of the Representation of the
People Act, 1951).
Such was the reasoning of the
court. This amendment clearly nullifies the reasoning and verdict of the court
in C.E.C. v. Jan Choukidar. According to this amendment, a person won’t cease
to be an elector merely because he is behind bars and is temporarily not able
to cast his vote. Thus, now persons who are behind bars will again be able to
contest in the elections.
Retrospective
effect to the abovementioned amendments
Section
4 of the Representation of the People (Amendment and Validation) Act, 2013 - Notwithstanding
anything contained in any judgment, decree or order of any court, tribunal or
other authority, the provisions of the Representation of the People Act, 1951,
as amended by this Act, shall have and shall be deemed always to have effect
for all purposes as if the provisions of this Act had been in force at all
material times.
Effect
of this Provision
This provision in the amendment
is the last nail in the coffin of C.E.C. v. Jan Choukidar verdict. By giving
retrospective effect to these amendments, the legislature has made sure that the
Jan Choukidar will not have any effect for whatever little time it was in
force. Jan Choukidar verdict has been made a complete nullity and the legal framework
has been made as if the verdict never existed.
Opinion
What can I say? The Supreme
Court did what it deem fit to be right and the legislature did what it deem fit
to be right. One side of the picture is that now criminals can contest
elections even while they are behind the bars. The other side of the picture is
that it won’t be possible to prevent a person from contesting elections merely
because that person is an accused and has been denied bail.
A settled principle of our
criminal jurisprudence is “innocent until proven guilty”. The presumption of
innocence is heavily in favour of the accused until he is declared guilty by a
competent court of law. This amendment will prevent cases where frivolous
charges are framed against an innocent person and because of which, he is not
able to contest elections.
Imagine a situation where a
person who is an accused and has been denied bail is prevented from contesting
elections. Later on, he is acquitted by the court. An election happens only
once in five years. His right to contest elections would have clearly been
violated in such a case. This amendment precisely aims to protect such a
situation from happening.
No matter what the media and
the civil society says, I firmly believe that such an amendment was needed. The
Supreme Court ought to have considered the implications of the Jan Choukidar
verdict. It clearly failed to do so. Hence, an amendment was imperative in this
regard.
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