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Jailed Persons right to contest without having the right to vote

Chapter IV of The Representation of People Act, 1951 deals with Disqualifications for Voting under section 11A is dealt Disqualification arising out of conviction and corrupt practices. Further 11B talks about Removal of Disqualifications. Section 11A reads: Disqualification arising out of conviction and corrupt practices. (1) If any person, after the commencement of this Act,is convicted of an offence punishable under section 171E1 or section 171F2 of the Indian Penal Code (45 of 1860), or under section 125 or section 135 or clause (a) of sub-section (2) of section 136 of this Act, he shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election. (2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall be disqualified for the same period for voting at any election. (3) The decision of the President on a petition submitted by any person under sub-section (2) of section 8A in respect of any disqualification 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 shall, so far as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section 11A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also.] We will here reproduce two sections of the Indian Penal Code (45 of 1860) which have been dealt with in Section 11A: 1. Section 171E reads Punishment for bribery.-Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both: Provided that bribery by treating shall be punishable by fine only. Explanation.-Treating means that form of bribery which where the gratification consists in food, drink, entertainment or provision. CLASSIFICATION OF OFFENCE Punishment-Imprisonment for 1 year, or fine, or both or if treating only, fine only-Non-CognizableBailable-Triable by Magistrate of the first class-Non-compoundable.

2. Section 171F reads Punishment for undue influence or personation at an election.- Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. CLASSIFICATION OF OFFENCE Para I: Punishment- Imprisonment for 1 year, or fine, or both or if treating only, fine only-NonCognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable. Para II: Punishment- Imprisonment for 1 year, or fine, or both- Cognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable. Thus its clear from the plain reading of Sec 171E and Sec 171 F that maximum jail term prescribed under them is 1 year. Further in Section 125 of the act of 1951 deals with Promoting enmity between classes in connection with election.Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable, with imprisonment for a term which may extend to three years, or with fine, or with both. Sec 125 of the act of 1951 prescribes maximum jail term of 3 years. Now Sec 135 of the act of 1951 deals with Removal of ballot papers from polling station to be an offence.(1) Any person who at any election 3[unauthorisedly] takes, or attempts to take, a ballot paper out of a polling station, or wilfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five hundred rupees or with both. (2) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under sub-section (1), such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer: Provided that when it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency. (3) Any ballot paper found upon the person arrested on search shall be made over the safe custody to a police officer by the presiding officer, or when the search is made by a police officer, shall be kept by such officer in safe custody. (4) An offence punishable under sub-section (1) shall be cognizable. Sec 135 of the act of 1951 prescribes maximum jail term of 1 year. Proceeding further Sec 136 (2)(a) reads as follows Other offences and penalties therefor. (2) Any person guilty of an electoral offence under this section shall,

(a)if he is a returning officer or an assistant returning officer or a presiding officer at a polling station or any other officer or clerk employed on official duty in connection with the election, be punishable with imprisonment for a term which may extend to two years or with fine or with both; Sec 136(2)(a) of the act of 1951 prescribes maximum jail term of 2 years. He shall be disqualified from voting for a period of 6 years from the date of conviction or from the date the order takes effect. Thus maximum jail term of 3 years debars a person from exercising his voting right for coming 6 years under clause (1) of Sec 11A. Now lets examine the clause 2 of Sec 11A its read with Sec 8A of the act of 1951, sub-section (1) of sec 8A prescribes a maximum jail term of six years from the date on which the order made in relation to him under section 99 takes effect. Thus section 8A (1) doesnt prescribe minimum jail term where as it prescribes maximum jail term of 6 years and disqualification of a voter from exercising his right to vote for a term similar to the awarded imprisonment.

Whereas the law is very clear as to bars on the right to vote, as mentioned above, some more bars are prescribed by Sec 62 of the RP Act of 1951 62(2) says no right to vote in case of disqualifications referred to in Sec 16 of RP Act 1950 apply. 62(3) says no person shall vote at a general election in more than one constituency of the same class. 62(4) says no person shall at any election vote in the same constituency more than once. However the strictest bar has been placed by 62(5) which clearly and unambiguously says no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation of otherwise, or is in the lawful custody of the police The only exception that Sec 62(5) makes is of people who subject to preventive detention under any law for the time being in force. Further Sec 22 titled Correction of Entries in Electoral Rolls of the RP Act 1950 read along with rule 21A of the Registration of Electoral Rules,1960 titled deletion of names makes it very clear that together they provide that the names of the persons who have ceased to be ordinarily resident in the constituency or are otherwise not entitled to vote, be deleted. There is a lacuna however the people who are jailed their names are not deleted from the electoral rolls while revision of electoral rolls is being carried out. It leads to mis-carriage of the whole spirit of elections leading to persons who are jailed contesting and at times even winning elections. When the organisation of Dr. S.N.Shukla, Lokprahari based out of Lucknow petitioned Election Commission to issue necessary orders under for which it is empowered by Art 324 of the Constitution of India to delete the names of prisoners at the time of revision of electoral rolls.On failing to elicit a reply from the Commission a writ petition number 593 of 2007 was filed at the Supreme Court for enforcement

of the same cause was summarily dismissed. Further on a review petition being filed the Supreme Court disposed it off vide order dated 16th April,2008 stating that the representation made before the commission can be considered and disposed of in accordance with law. Commissions response to the said petition is still awaited. Thus a person who is jailed is specifically barred from even giving vote u/s 62(5) but can conveniently fight and win an election due to short sightedness of the lawmakers. The mood of the constitution framers is clear from the statement Dr. Ambedkar uttered in one of illustrious Constituent Assembly debates being a voter is an essential qualification for being a candidate