Quick answer
Yes, today a person in jail or police custody can still contest an election, even though he cannot vote while confined. In Chief Election Commissioner v. Jan Chaukidar (Peoples Watch) (2013), the Supreme Court upheld the Patna High Court's view that a person barred from voting by Section 62(5) of the Representation of the People Act, 1951 is not an "elector" and so cannot contest. Parliament reversed that result through the Representation of the People (Amendment and Validation) Act, 2013, which says such a person does not cease to be an elector, with effect from 10 July 2013.
The law
Section 62(5) of the Representation of the People Act, 1951 says no person shall vote at any election if he is confined in a prison (under a sentence or otherwise) or is in the lawful custody of the police. Its first proviso excludes persons held under preventive detention (detention to prevent a future act, not as punishment). Under Sections 4 and 5 of the 1951 Act, a candidate for the Lok Sabha or a State Legislative Assembly must be an elector for a constituency.
The Chief Election Commissioner v. Jan Chaukidar (Peoples Watch), Supreme Court of India, 10 July 2013, two judges (A.K. Patnaik and S.J. Mukhopadhaya, JJ.), Civil Appeal Nos. 3040-3041 of 2004. The Patna High Court (30 April 2004) had held that the right to vote is a statutory right, and a person in prison or lawful police custody loses the right to vote under Section 62(5), so he is not an elector and cannot contest. The Supreme Court found "no infirmity" in this view and dismissed the appeals.
Parliament's response
The Representation of the People (Amendment and Validation) Act, 2013 (Act No. 29 of 2013) received Presidential assent on 20 September 2013 and is deemed to have come into force on 10 July 2013, the day of the judgment.
- Section 3 added a second proviso to Section 62(5): because of the prohibition to vote, a person whose name is entered in the electoral roll "shall not cease to be an elector".
- Section 2 amended Section 7(b), so a person is disqualified from membership only under the provisions of that Chapter "and on no other ground".
- Section 4 is a validation clause: the amended Act applies notwithstanding any judgment, decree or order of any court, as if it had always been in force.
Elector status and the right to vote compared
| Point | Patna High Court and Supreme Court view | After the 2013 Amendment |
|---|---|---|
| Can a prisoner vote? | No (Section 62(5)) | Still no; the voting bar is unchanged |
| Is he still an "elector"? | No, while confined | Yes, if his name is on the electoral roll |
| Can he contest? | No, because he is not an elector | Yes, unless he is separately disqualified (for example, after a conviction covered by Section 8) |
| Preventive detainees | Outside the voting bar (first proviso) | Same |
Aadil, a registered voter, is arrested and is in judicial custody while an Assembly election is announced. He cannot vote on polling day because of Section 62(5). He can still file his nomination, because his name remains on the electoral roll and the 2013 proviso says he does not cease to be an elector. Custody alone does not bar him; only a separate disqualification, such as one following a conviction covered by Section 8 of the 1951 Act, could.
Exam point
Jan Chaukidar (2013) held that a person barred from voting by Section 62(5) is not an elector and cannot contest; the 2013 Amendment and Validation Act reversed this with effect from 10 July 2013, so the voting bar remains but elector status, and the right to contest, survive.
