CEC v. Jan Chaukidar

During the 2004 Bihar elections, many malpractices were reported. One concern was that people lodged in jail were contesting elections.

An N.G.O. called Jan Chaukidar (English name: Peoples' Watch) filed a public interest petition in the Patna High Court under Article 226. The High Court held that people in police custody or in jail, unless they are under preventive detention, can neither vote nor contest elections.

The High Court relied on the Representation of the People Act, 1951. Sections 4 and 5 require a candidate for the Lok Sabha or a State Assembly to be an elector, meaning a person whose name is on the electoral roll and who has the right to vote. Section 62(5) says that a person in jail, whether serving a sentence or for any other reason, or in the lawful custody of the police, cannot vote. Persons under preventive detention are the only exception.

The Chief Election Commissioner challenged the High Court's decision before the Supreme Court.

1. Can a person lodged in jail or in lawful police custody (not under preventive detention) contest elections to Parliament or a State Legislature?

2. Since Section 62(5) bars such a person from voting, does that person stop being an 'elector' and therefore lose the qualification to contest under Sections 4 and 5?

3. Is the right to vote a fundamental right or a statutory right?

4. Is Section 62(5) valid under Article 14 and Article 21?

The Chief Election Commissioner challenged the Patna High Court's decision before the Supreme Court.

Some people argued that Section 62(5) violates Article 14 (equality) and Article 21 (life and liberty). They said that barring undertrial prisoners, who have not been convicted, from voting goes against the principle of 'innocent until proven guilty'. They also said that putting the accused and the convicted in the same category is not a reasonable classification.

On the other side, the Supreme Court had already held in Anukul Chandra Pradhan (1997) that Section 62(5) is valid. Keeping criminals away from the electoral process, and the practical difficulty of arranging voting inside jails, were held to be a reasonable basis for the bar.

On 10 July 2013, a bench of Justice A. K. Patnaik and Justice S. J. Mukhopadhaya held that the Patna High Court was entirely correct.

The Court's reasoning was simple. Section 62(5) says that a prisoner cannot vote. A person who cannot vote is not an elector. A person who is not an elector loses the qualification to contest an election.

The High Court had held, and the Supreme Court agreed, that voting is a statutory right and not a fundamental right. This follows earlier cases such as N. P. Ponnuswami and Jyoti Basu v. Debi Ghosal, which held that the right to vote and the right to contest are created by statute. The challenge to the validity of Section 62(5) had already been rejected in Anukul Chandra Pradhan (1997), which held that a prisoner loses liberty because of his own conduct and cannot claim the same rights as a free citizen.

On the same day, the same bench delivered the Lily Thomas judgment, which cleared the way for the immediate disqualification of convicted M.P.s and M.L.A.s.

Later developments: Parliament passed the Representation of the People (Amendment and Validation) Act, 2013. It received the President's assent on 20 September 2013 and was published in the Gazette on 23 September 2013. It added a further proviso to Section 62(5): a person whose name is on the electoral roll remains an elector even if the right to vote is temporarily suspended because of being in jail. The amendment was deemed to have come into force from 10 July 2013, so it had retrospective effect and removed the basis of the Supreme Court's ruling.

In Manohar Lal Sharma v. Union of India (2014), the Delhi High Court upheld the amendment. The Allahabad High Court later also dismissed a petition against it.

Representation of the People Act, 1951 – Section 4; Representation of the People Act, 1951 – Section 5; Representation of the People Act, 1951 – Section 62(5); Representation of the People (Amendment and Validation) Act, 2013; Constitution of India – Article 226; Constitution of India – Article 14; Constitution of India – Article 21

The case is regarded as a turning point for Indian democracy and election law.

It is a leading example of Parliament overturning a Supreme Court ruling within about three months through a retrospective validation law.

It confirms that voting is a statutory right, applying Section 62(5) and the reasoning in Anukul Chandra Pradhan.

It is central to the topic of criminalisation of politics. It should be read with Lily Thomas, Manoj Narula and Public Interest Foundation.

It raises an important debate. One view is that the amendment prevents 'vendetta politics' against rivals. The other view is that it allows people facing criminal cases to remain in electoral politics.

Exam answers should mention: Sections 4, 5 and 62(5) of the Representation of the People Act; the right to vote as a statutory right; Anukul Chandra Pradhan; the 2013 Amendment and Validation Act; retrospective validation; and the vendetta politics argument in Manohar Lal Sharma.

Hypothetical: Prince's name is on the electoral roll of his constituency. A week before nominations close, he is arrested and kept in jail as an undertrial. He wants to contest the Assembly election.

Under the Supreme Court's reasoning in Jan Chaukidar (10 July 2013), Prince cannot vote under Section 62(5). He would therefore not be an elector and could not contest.

After the 2013 Amendment and Validation Act, the position changes. Prince still cannot vote while in jail, but because his name is on the electoral roll he remains an elector and can file his nomination.

By contrast, Farhan is held only under preventive detention. He falls within the exception in Section 62(5) and is not barred from voting at all.