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Poll panel may move SC against high court order
Contesting poll from jails
S.S. Negi
Our Legal Correspondent

New Delhi, May 2
The Election Commission is considering to move the Supreme Court to challenge a Patna High Court order asking it to consider countermanding of the poll in the constituencies where people with criminal backgrounds are contesting from behind the bars even as legal experts are divided on the issue.

Though the commission has yet to take a formal decision regarding moving the apex court, sources in the panel said the directive was neither legally nor practically tenable, hence it could not be implemented.

The commission was of the view that if the high court order was to be enforced in letter and in spirit, it had to collect information from every constituency whether any person lodged in jail was a candidate as it could not be restricted to one state.

The high court had said since a person lodged in a jail did not have a voting right, he could not contest the election either.

On the other hand, legal experts are divided on the legality and applicability of the high court judgement.

While former Lok Sabha Secretary-General Subhash C Kashyap, an authority on parliamentary laws, and senior advocate P.P. Rao felt that the high court order was not tenable under the law, another senior advocate, Mr P.N. Lekhi, said it was nothing but “conservative” interpretation of the statute regulating the poll process.

Though Mr Kashyap and Mr Rao said that there was an urgent need for a strong law to prevent criminals from entering the election arena, yet the Election Commission had no power to debar those who had not yet been convicted and awarded sentence for more than two years.

Under the amended Representation of People’s Act, only a person convicted and sentenced for more than two years is debarred from contesting election.

“We can agree that criminals should not be allowed to contest elections as it is morally and ethically untenable for the smooth functioning of democracy, but at present there is no such law under which they can be debarred unless proved guilty and sentenced for more than two years for a crime,” Mr Kashyap said.

“There is no provision to countermand the election merely because a person who is in jail has no right to vote,” he said. Emphasising the need for enacting a stringent law to put an embargo on people with a criminal background entering the poll fray, he said the Constitution Review Commission had also made a strong recommendation in this regard.

“This cannot be done with judicial pronouncements in the absence of any law. If a law is bad, only legislature can take corrective measures. Judiciary has no power to do so...such a direction by the judiciary will amount to only exceeding its jurisdiction,” Mr Kashyap said.

“Under the existing laws, the right to contest election and the right to vote are two different things. A person is eligible to vote on attaining the age of 18 but he cannot contest the election till be becomes 25. Then how can the two be put on the same footing?” he said.

But Mr Lekhi disagreed with them and said there was nothing wrong in the high court’s directive to the EC. “Contesting election is neither a constitutional right nor a fundamental right. It is only a statutory right.”

“Since contesting election is a statutory right and the law provides that only a person who is not in shackles and can move freely, can take part in the legislative process of the country. A person who is in jail is debarred from voting because he does not have freedom to take part in legislative process. Then how can he be allowed to contest election?” Mr Lekhi said.

“Had the contesting election been a fundamental or constitutional right, it should have then been clearly laid in the statute,” he said.

“The high court judgement has not evolved anything new, nor was it a progressive view. It appears to be a conservative interpretation of the law and is debatable. The law is not divorced from the social life,” he said.

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