Allahabad HC upholds validity of Representation of People’s Act 2013 Amendment allowing Jailed persons to contest Election [Read Order]

Allahabad High Court has upheld the validity of 2013 amendment to Representation of People Act. A writ petition by LOK PRAHARI, which had sought a declaration that the Representation of the People (Amendment and Validation) Act, 2013 is ultra vires and unconstitutional, got dismissed by a division bench comprising of the Chief Justice Dr D Y Chandrachud and Justice Rajan Roy.

In order to addressthe situation arising out the order of the Supreme Court in The Chief Election Commissioner vs. Jan Chaukidar (Peoples Watch), the Parliament had amended the Act in 2013 and inserted a proviso to Section 62. In Jan Chaukidar case, the Supreme Court had upheld the Patna High Court view that a person who has no right to vote by virtue of the provisions of sub-section (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. The proviso inserted by 2013 amendment reads “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.”

The contention of the petitioner was that by and as a result of the amending law, the basis of the decision of the Supreme Court in Jan Chaukidar has not been taken away.

The Court observed that, through the amendment, Parliament has clarified its intent by stipulating that a person who incurs a prohibition to vote under sub-section (5) of Section 62 upon being confined in a prison or as a result of being in lawful custody of the police, shall not cease to be an elector so long as his name is entered in the electoral roll. The bench said “There is no provision, as we have seen earlier, by which the name of a person has to be deleted from an electoral roll as a consequence of confinement in prison or as a result of being in lawful custody. This position has been clarified by means of the introduction of the second proviso of sub-section (5) Section 62 through the amending legislation. The amending legislation consequently removes the basis of the judgment in Jan Chaukidar by introducing a suitable provision to that effect.”

The Court also noted that the Division Bench of Delhi High Court in Manohar Lal Sharma vs. Union of India upheld the validity of the legislation. In that Judgement, the Delhi High Court had opined “as our criminal justice system is based on the principle of 'innocent until proven guilty', we cannot presume our under trials in custody to be guilty as far as right to contest elections is concerned.” In 2013, the Apex Court had also given its approval to the amendment.

Read the order here.