Behind Bars & Ballots : How Laws Apply When Jailed Persons Win Elections?

“The ballot is more potent than the most powerful gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner,” -Anoop Baranwal v. UOI

In the 18th Lok Sabha elections, the two Members of Parliament emerged victorious while being confined in the prison. Amritpal Singh from Punjab's Khadoor Sahib and Sheikh Abdul Rashid, popularly known as Engineer Rashid from Baramulla, Kashmir were elected as Members of Parliament after contesting as independent candidates.

In April 2023 Amritpal, head of organisation Waris Punjab De, was arrested and detained under the National Security Act, 1980 and thereafter in March a second detention order was passed against him by District Magistrate, Amritsar.

Rashid has been in jail since 2019 after he was charged by the NIA under the Unlawful Activities (Prevention) Act in an alleged terror funding case.

It is pertinent to note that neither of the members has been convicted yet. Amritpal is under preventive detention under the National Security Act, a law allowing the government to detain individuals for up to 12 months without pressing formal charges. Rashid is an under-trial prisoner. The law does not prohibit a person under preventive detention or under trial from contesting elections. However, there are certain restrictions if the elected member is convicted, which will be discussed in this article.

Right To Contest Election

Section 62 (5) of the Representation of the People Act, (RP Act) bars a lawfully imprisoned person (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) from voting. A 2013 amendment in the law provides that the person even if barred from voting shall not cease to be an elector, whose name has been entered in the electoral rolls. There is no such prohibition under the Act to contest election if the candidate is imprisoned and awaiting trial.

In 2018, a Constitution Bench of the Supreme Court refused to hold that candidates should be disqualified from contesting elections if charges have been framed against them in criminal cases. The Court, while acknowledging that criminalisation of politics was a serious issue, said that it was for the Parliament to lay down the criteria for disqualification and that the Court cannot add to the grounds specified in the statute.

In 2022, the Supreme Court held that the right to contest elections, although not a fundamental right, is a right conferred by statute.

Time and again, various High Courts have clarified that the right to contest elections from jail does not imply that the candidate receives special immunity from the law or the right to obtain relief solely for the purpose of contesting elections.

The Madhya Pradesh High Court in October 2023 refused to suspend the conviction of an aspiring State Assembly election candidate observing that, “Right to contest the election is not a fundamental right.”

“Right to contest the election is not a fundamental right. It is a statutory right. From the facts of the case, it is apparent that the appellant has been convicted for offence under Section 307 of IPC for three counts and his presence has been established at the spot and a knife has also been recovered from him. Apart from that, he is a habitual offender having eight criminal cases”, Justice Vijay Kumar Shukla observed in the order.

The Delhi High Court in Election Commission Of India vs Mukhtar Ansari & Anr observed that right to contest election from jail “cannot imply that the candidate gets a right to be released from jail for campaigning”.

The Court said, even though a person with criminal background and antecedents would not be a desirable person to contest the elections, the legislation does not debar him from contesting the elections.

Thus, as long as the Representation of the People Act, 1950 qualifies a citizen to contest an election, he cannot be prohibited from contesting the same by filing the nomination. However, a right to contest the election cannot imply that the candidate gets a right to be released from jail for canvassing as a candidate for being elected, the Court added.

“If the candidate is in custody for an alleged offence, it would be the discretion of the Court to release him or not, depending on the facts and circumstances of the case. When a person in custody fills up a nomination as a candidate, he does not get a vested right to be released for canvassing. He runs the risk if not released on bail to contest election from custody. Though the fact that the candidate has to contest the election may be a relevant factor for grant of bail but that is not the only consideration. Bail to an accused contesting election cannot be granted dehors the parameters of grant of bail laid down by the Supreme Court in various decisions,” it observed.

Recently, while granting bail to former MP Dhananjay Singh in connection with a kidnapping and extortion case, the Allahabad High Court took a strong stance on the issue of candidates with criminal backgrounds participating in elections.

“It is often seen that after conviction of a person who was or is Member of Legislative Assembly or Member of Parliament, used to take a general plea for stay of operation and effect of his conviction that he wants to contest election and in case the judgment of his conviction is not stayed, he will be deprived of his right to contest the election which will result in irreparable loss and injury to him, but this Court feels that each and every case has to be decided on its own merit as well as considering all the surrounding circumstances and other attending factors including gravity of offences, nature of previous criminal history etc,” the Court said.

In 2019, PIL challenging the provision of Representation of the People Act, which allows imprisoned persons to file nomination papers for an election, is pending before the Punjab & Haryana High Court. The plea said it is a loophole, which allows even a convict to contest the elections.

The petitioner contended that the legal position violates the “rudimentary logic” that one must first be eligible to vote if they are to contest elections as the set of candidates is only a sub-set of the voters.

Can Prisoner Elected As MP Attend House?

Being elected from prison does not confer any special right on the jailed member to attend parliamentary proceedings.

The Delhi High Court in Suresh Kalmadi (In Judicial Custody) vs Union Of India & Ors, 2011 while deciding plea of Suresh Kalmadi, who was an MP in 2011 said that, merely because the petitioner is a Parliamentarian does not entitle him to claim any exception from the effect of being in detention. Being in judicial custody for corruption charges he had filed the writ petition seeking direction for permission to attend the Parliament while remaining in judicial custody.

Kalmadi pleaded that unless the petitioner is permitted, the Parliamentary Constituency which had elected him would go unrepresented in Parliament. It was thus contended that public interest demands that he is permitted to attend Parliament.

The Court opined that Kalmadi has not made out any case necessitating him to attend the Parliament. It is not the case that the vote of the petitioner on any aspect is vital or that without such participation the citizens of his Constituency would suffer.

“Allowing the petitioner to attend the Parliament, even if in judicial custody, would certainly provide the petitioner respite from imprisonment. I see no reason to carve out an exception in favour of the petitioner when his fellow prisoners are not provided such respite. Sophocles said "Nobody has a more sacred obligation to obey the law than those who make the law", the Court observed.

The Parliamentary privileges which the Members of Parliament enjoy are intended to facilitate their work as representatives of people and should not be mistaken as indicative of rank or creating a separate class different from the other citizens, it added.

Reliance was placed on Apex Court's decision in Vineet Narain Vs. Union of India [(1998) 1 SCC 226] wherein it was held that the law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life - every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone.

The High Court also noted that during the hearing, when it had enquired whether any provision in the guidelines relating to parole / furlough exists qua Parliamentarians but the senior counsel for the petitioner stated and it has been so observed in Lok Sabha Debates dated 24th November, 1965 at page 3615 also that a Parliamentarian on parole is not entitled to attend the House. Moreover, parole is post conviction. No other instances under which a person while in custody can be permitted to perform his duties has been cited.

Similarly, Allahabad High Court in Raghu Raj Pratap Singh Alias Raja Bhaiya vs State Of U.P. And Ors., 2003 while dealing with the pleas filed by the two MLAs from Uttar Pradesh seeking direction to allow them to attend the proceedings opined that, so long as the two Legislators are detained under valid detention order, they have no right or privilege to participate in the session of the House.

The Court rejected the argument that the Court is bound to permit any such Legislator to participate in the session. “Power under Article 226 of the Constitution is discretionary and no one can say that this Court will have no option but to act in a particular manner.”

Bail For Contesting Election Or Campaign

Contesting an election or campaigning for it can be grounds for considering the grant of bail to politicians but cannot be the sole reason.

Plea of campaigning for Lok Sabha election in interim-bail application cannot be compared with harvesting of crops or plea to look after business affairs. In this background, once the matter is subjudice and the questions relating to legality of arrest are under consideration, a more holistic and libertarian view is justified, in the background that the 18th Lok Sabha General Elections are being held, observed Supreme Court while granting interim-bail to Delhi CM Arvind Kejriwal.

The Apex Court then opined, “at this stage, it is not possible for us to either conclude the arguments or finally pronounce the judgment. However, there is an intervening factor which has prompted us to consider and pass the present order, namely, 18th Lok Sabha General Elections, which are in progress.”

“It is no gain saying that General Elections to Lok Sabha is the most significant and an important event this year, as it should be in a national election year…Given the prodigious importance, we reject the argument raised on behalf of the prosecution that granting interim bail/release on this account would be giving premium of placing the politicians in a beneficial position compared to ordinary citizens of this country. While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances. In fact, to ignore the same would be iniquitous and wrong,” it added.

Relying on the Supreme Court's order granting interim bail to CM Arvind Kejriwal to campaign for the Elections, the Punjab and Haryana High Court granted interim-bail to Punjab's former Forest Minister Sadhu Singh Dharamsot, arrested by the Enforcement Directorate in connection with a money laundering case.

The Delhi High Court in Mukhtar Ansari's case who was then MLA from UP's Mau constituency had made it clear that the ground that the accused is contesting the election may be a relevant factor for grant of bail, however that is not the only consideration.

“A free and fair election is the basic structure of the Constitution, but no candidate has a legal right to canvas for himself de-hors the other statutory restrictions. When a person in custody fills up a nomination for candidature, he does not get a vested right to be released for canvassing. He runs the risk of being not released on bail to canvas for himself. Though the fact that an accused is contesting the election and is required to canvas for himself may be a relevant factor for grant of bail, however that is not the only consideration,” a single judge opined.

Amritpal Singh also moved the Punjab & Haryana High Court before the recent Lok Sabha poll, seeking interim-bail to file nomination as he alleged that the State is delaying the procedural formalities on purpose.

However later, the Punjab Government submitted before the High Court that the state has facilitated him to file his nomination for the Lok Sabha elections, hence the plea was rendered infructuous. 

Disqualification On Conviction

If an elected member of Parliament is convicted, he or she will be disqualified as per Section 8 (3) of RP Act. It states that if a person is convicted of any offence and sentenced to an imprisonment of 2 years or more, this will be disqualification to contest elections, “for a further period of six years since his release.”

Earlier, Section 8(4) of the RP Act provided a three-month time period for the convicted legislator to file an appeal during which the disqualification would not take effect.

However, it was struck down by the Supreme Court in 2013 for being unconstitutional in Lily Thomas v. Union of India. A division judge bench comprising Justices A.K. Patnaik and S.J. Mukhopadhaya observed that the Parliament had no legislative power to defer the date on which the disqualification of a sitting member would have effect.

In a PIL seeking life-time ban on convicted politicians, the amicus curiae appointed by the Supreme Court in his 19th report has suggested that limiting the period of disqualification to contest elections after conviction to 6 years, is manifestly arbitrary and violative of Article 14 of the Constitution. The Amicus has suggested permanent disqualification of such convicts instead of a 6 year ban.

The Supreme Court in the same matter issued a slew of directions to monitor the early disposal of pending criminal cases against Members of Parliament and Members of Legislative Assemblies.

The Apex Court observed that it was difficult for it to lay down uniform guidelines applicable across the States and left it to the High Courts to evolve such measures for effective monitoring of such cases by invoking its powers under Article 227.

Disqualification On Absence From Parliament

If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant, states Article 101 (4) of the Constitution.

Hence, it is crucial for incarcerated Members of Parliament to seek permission from the Speaker of the House if they are unable to attend meetings for sixty days.