JAN CHAUKIDAR – WAS A CORRECTIVE STEP NULLIFIED?

By Anmol Sinha, SLS Pune

Editor’s Note: Jan Chaukidar was one of the boldest and unconventional decisions taken by the apex judicial body, striving towards the cleansing of the political arena. However, the retaliation shown by the legislature, towards the decision shows the laxity of the politicians to accept any major change, which might be undermining to their interests. Although the effect of the decision has been overturned, by analyzing this case, I attempt to shed light whether the judgment was actually beneficial as it appeared to be prima facie, or was the step of revocation of the judgment something done in pursuance of democratic evolution.

Introduction

In 2004, a Public Interest Petition was filed in Patna High Court, by Jan Chaukidar, an NGO, in wake of several malpractices in elections reported in Bihar. The Patna High Court in its ruling debarred all those people who are in lawful police custody and serving jail terms, from voting, or contesting election for parliament or state assemblies, even if they are enrolled as voters.[1]

The Hon’ble High Court ruled that the qualification for membership of the House of People, under section 4(d) of Representation of People Act, requires that a candidate has to be an elector. An elector is a person, who is legally entitled to vote. However, under section 62(5) of Representation of People Act, lays down that right to vote is not available to a prisoner, except a person under preventive detention. Thus, all prisoners who are not under preventive detention can neither vote nor can they contest elections.

This verdict was challenged by Chief Election Commissioner and others in the Supreme Court.

On 10th July 2013, a divisional bench, comprising of Justice AK Patnaik and Justice SJ Mukhopadhaya, upheld the verdict of Patna High Court. It was pointed out that section 62(5), clearly lays down that any person, who is under the lawful custody of the police, or under the sentence of imprisonment or transportation or otherwise, is not allowed to vote, and since the person does not qualify as an elector, he cannot stand as a candidate for election to the House. The Hon’ble Supreme Court further clarified that this does not apply to people who are held under preventive detention.

We do not find any infirmity in the findings of the HC that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a state. These civil appeals are accordingly dismissed” the apex court ruled.

The ruling was followed by a quick reaction by the legislature. Representation of People (Amendment and Validation Act) 2013 was passed within three months. The bill received the President’s assent on 23rd September 2013. It amended section 7, 62 and 43 of the 1951 Act. The major amendment by this act was that of section 62, which is

In Section 62 of the Principal Act[2], after the proviso to sub-section (5), the following proviso shall be inserted, namely:—

“Provided further that by reason of the prohibition to vote under this subsection, a person whose name has been entered in the electoral roll shall not cease to be an elector.”

Section 4 of the amendment introduces the retrospective effect. It made the act to be applicable from 10th of July, thus totally nullifying the Supreme Court’s ruling.

Hence, in the present day, a person is entitled to vote as well as stand for election as long as his name is in the electoral roll.

Analysis

The logic of the decision is as follows:

The judgment says that a person who is confined in a prison or in the lawful custody of police loses the right to vote (S. 62(5) of RPA), and is hence disqualified from contesting elections. The reasoning is that a person who has no right to vote is disqualified from registering in the electoral rolls (S. 16(1)(c) of RPA), implying that he/she is not an ‘elector’ (S. 2(1)(e) of RPA) – which is one of the qualifications for “being chosen to fill a seat” of the House of the People and a Legislative Assembly of a State (S. 4(d) and 5(c) of RPA).[3]

“The Supreme Court took the view that it was reasonable to deny voting rights to convicted prisoners, under trials and those in police custody because it was being done to curb the criminalization of politics. Further, it took account of practical considerations and ruled that the additional resources that would be required in terms of infrastructure, security and deployment of extra police forces were legitimate justifications in denying the right to vote to prisoners and those in custody.

The court was of the view that a prisoner was ‘in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment [and] cannot claim equal freedom of movement, speech, and expression with the others who are not in prison.[4]”

However, the decision forces to ponder upon whether Section 62(5) is constitutionally sound. Right to vote is a statutory right and hence is under the regulation by the legislature, subject to Article 325 and 326 of the constitution[5]. Section 62(5), is one of the conditions laid down, which has to be looked upon for a person to vote in the election. The validity of section 62(5) was raised before the Hon’ble Supreme Court in Anukul Chandra Pradhan v Union of India. It was contended that the section is violative of Article 14, right to equality and Article 21, right to life. The Supreme Court rejected this challenge.

Still, considering section 65(2) to be valid, it violates the principle of “Innocent until proven guilty”. Under this section, we are placing the people who are accused of an offence under the same category of those who are already convicted and not allowing them to vote. The principle of reasonable classification is valid under Article 14 however; such a classification is averse to classifying reasonably. It gives power to a person to strip off other person from is right to vote, by simply accusing him and accounting him to go to jail. Such a rule negates the very concept of citizenship and denies the person of his right to be heard of in forming the government.

If section 62(5), is considered to be valid and abiding to all the constitutional principles, then the rationale given by the Hon’ble Supreme Court behind the decision is logically sound.

Reaction to the decision

The decision evoked a wide range of responses from various sections across the societies. While there are people who are a supporter of this decision, there are also people who deliberate the judgment to be unsound.

The first reaction to the judgment was that it was welcomed by the people. People welcomed the decision alongside Lilly Thomas case, which declared section 8(4) of the Representation of The People Act to be ultra vires. The Times of India in its editorial said that, the rulings will go a long way in rescuing politics from clutches of criminals[6]. Even the former Chief Election Commissioner was of opinion that “this judgment would have serious and far reaching implications for cleansing India’s political system[7]”. Political parties cautiously[8] welcomed the decision.

However, as the time passed, there were several criticisms of the decision. Various flaws were drawn out, and the different reactions cropped up. The most deterrent reaction was given by the political parties of the country. Various political parties, which usually find some or the other ground of disagreement on various legal issues, was unanimous to support the amendment of Representation of People Act. The retrospective effect of the amendment and including a provision, which nullifies the effect of the decision, shows the concern of the political parties, when something affects their own interests.

The statement of object and purpose of the amendment[9] reads as:

 “A Division Bench of the Supreme Court by its order dated the 10th July, 2013, in the case of Chief Election Commissioner vs. Jan Chaukidar and others (Civil Appeal Nos. 3040-3041 of 2004), has upheld an order of the High Court of Patna declaring that a person who has no right to vote by virtue of sub-section (5) of section 62 of the said Act, is not an elector and is, therefore, not qualified to contest the election to either House of Parliament or the Legislative Assembly of a State.

“The Government has examined the said order of the Supreme Court and has filed a petition for review of the said order in consultation with the Learned Attorney-General for India. Further, the Government is of the view that without waiting for the outcome of the said review petition, there is a need for suitably addressing the situation arising out of the said order of the Supreme Court. Therefore, it is proposed to amend the said Act.”

This shows a general acceptance among the political class that the decision was flawed. The decision was criticized on various grounds by the political parties.

The decision, in a nutshell, said that, any person who is under the lawful custody of the police or confined in a prison cannot be allowed to contest the election. The word, “lawful custody”, was targeted by the political parties. A person being in the lawful custody of the police does not imply that the person is convicted of the offence. It merely implies that there is some legal procedure going on against the person, and whether a person is guilty of the offence or not, is yet to be judged by the courts. It is very easy to send any person to the lawful custody. If a complaint is filed against anybody, he can be sent to the lawful custody.

So, if the decision given is, relied upon, in would open a whole new door to innumerous malicious complaints against the candidates, thus denying them of their right to contest the election. Moreover when the legal procedure takes its due course, and it is found out by the courts that the accused is not guilty of the offence, yet he wasn’t allowed to contest the election, would result into gross injustice.

Same was the concern on some stratus of civil society. Here is an excerpt from the editorial page of The Hindu[10]

However well-intentioned the Supreme Court might be in its efforts to cleanse the political system of criminals, its decision to bar any person who is in jail or in police custody from contesting an election to legislative bodies is a case of the remedy, being worse than the disease. By extending the curtailment of the right to vote of a person in prison or lawful police custody to the right of the person to stand in an election, the Supreme Court has, in effect, left the door open for the practice of vendetta politics by ruling parties. All that politicians in power now need to do to prevent rivals from contesting an election is to ask the police to file a case and effect arrest.”

The concern was also brought up by Mr. Karan Thapar, who commented,

“This also means another George Fernandes, who fought and won in July 1977 from jail, is impossible. That, alone, diminishes our democracy.

Beyond moral concerns, this judgment can be used to foist false cases to disqualify those you may not be able to electorally defeat. This is, possibly, an invitation for vendetta[11]

To quote Mr. Markandey Katju, the former Supreme Court judge:

“The judgment of the Supreme Court in Chief Election Commissioner v. Jan Chaukidar also merits reconsideration because it has held that if a person is in jail or police custody, he cannot contest an election[12]

However, there was also a group of people who countered the opinion, and labelled it just as a scapegoat used by the political parties as the decision has a negative effect on their political ambitions. One of the criticisms, which I came across, was raised by Mr. Jagdeep Chhokar, director in-charge of IIM, Ahmedabad.

He brought into the light, that the people, who would indulge into filing false complaints against the candidates, won’t be people from civil society, but people who belong to political arenas. Hence, if the political class cannot discipline themselves, why should the society bear its cost?

“Who “foists false cases” on opponents? The citizens, voters, police, or the judiciary? The answer, which does not seem to be known to everyone who uses this argument, is that false cases, particularly for political purposes, are “foisted” always at the behest of other politicians. If the politicians refuse to discipline themselves collectively, should the citizenry continue to suffer or should the citizenry not take recourse to another pillar of the state, the judiciary, and seek redress?[13]

Moreover, the 2002 Right to Information amendment in the Representation of the People Act 1951, whereby those who contested were obliged by law to declare their criminal background[14], would be of no use, because they are still allowed to contest elections after that.

A suggestion which could have served as a middle path came from the Election Commission, which wanted to consider only those cases, in which charges came six months prior to the election[15]. Former, Chief Election Commissioner T.S. Krishnamurthy has in a  letter suggested to Prime Minister Manmohan Singh a set of poll reforms proposing that anyone charge sheeted at least six months before elections should be barred from contesting elections.

Conclusion

Even though, the effects of Jan Chaukidar case have been nullified, the whole episode has left a lot to learn from it. The concern raised by the various criticizers, if looked from one point of view seems to be very genuine. In a society like India, where the law is used as means to an end, misusing the rule laid down by the decision is something which cannot be done away with. There were chances, that it could have been misused to bar good candidates from contesting the election. It could have been used by the influential candidates in order to bar their opponents.

Looking from this point of view, the quick step taken by the parliament seems to be something which has to be complimented. If the act was done, with the intention with which it was said to be done, it inculcates the faith back into the legislature and forces the general public to ponder that maybe the parliament has not lost its essence. Maybe our parliament is still competent enough to make and amend rules as the need arises.

However, on the other hand, the increasing number of MPs and MLAs having cases registered against them is a fact which cannot be denied. With more and more candidates contesting election being accused of something, it raises concern, whether the step is in actuality what it is, or is it just another example of ‘which could not have been done directly, has been done indirectly’.

No, the decision can be totally correct or totally wrong. A correct decision according to the law may be incorrect in eyes of some people. The correctness of the decision has to judged, weighing both the positive effects and the repercussions produced by it. In the present case, the contemplation has to take place taking into account the concerns raised as well as grass root reality.

Formatted by March 1st, 2019.

Footnotes

[1] R. Sedhuraman,  Apex Court: Those in jail can’t vote, contest polls, The Tribune (July 12, 2013), www.tribuneindia.com/2013/20130712/main5.htm

[2] Representation of People Act, 1951

[3] Vasujith Ram, Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result, Lawandotherthings (August 5,2013),  lawandotherthings.blogspot.in/2013/08/reading-lily-thomas-and-jan-chankidar.html

[4] Anup Surendranath, For a More Inclusive Ballot, The Hindu (August 8, 2013), www.thehindu.com/opinion/lead/for-a-more-inclusive-ballot/article5000188.ece#comments

[5] Id

[6] 12 July 2013 p 18

[7] Samanwaya Rautray, MPs, MLAs to be disqualified from date of conviction: Supreme Court, The Economic Times ( July 11, 2013, 03:34 am IST) articles.economictimes.indiatimes.com/2013-07-11/news/40514883-1-disqualification-justices-ak-patnaik-convictions

[8] “cautious welcome” TOI, July 11,2013 p10

[9] http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/RP%20AV-EI.pdf

[10] Judicial overreach, The Hindu (July 12 2013), www.thehindu.com/todays-paper/tp-opinion/judicial-overreach/article4907033.ece

[11] Karan Thapar, Error in Judgement, Hindustan Times ( July 21, 2013, 00:15 am IST),  www.hindustantimes.com/comment/karanthapar/error-in-judgment/article1-1095790.aspx

[12] Markandey Katju, Crime Caste and Judicial Restraint, The Hindu ( July 18, 2013, 01:20 am IST) www.thehindu.com/opinion/op-ed/crime-caste-and-judicial-restraint/article4921389.ece

[13] Jagdeep Chhokar, Time to clean politics: Will India’s netas allow?, Governance now ( August 2, 2013) www.governancenow.com/news/regular-story/time-clean-politics-will-indias-netas-allow

[14] Ajit Kumar Jha & Sanjay Kumar Jha, Judicial Stumping: Judiciary, CEC for debarring criminal-politicians from contesting polls, India Today ( August 9, 2004, 12:29 pm IST), indiatoday.intoday.in/story/cec-suggests-pm-to-set-poll-reforms-for-debarring-criminal-politicians-from-contesting-polls/1/195702.html

[15] Id.

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