The Aam Aadmi Party (AAP) has included all three leaders in its list of top campaigners for the ongoing 2024 Lok Sabha elections. Can Arvind Kejriwal and his former ministers vote in the ongoing elections? Let's explore:
Delhi, where Prime Minister Arvind Kejriwal and his former ministers are currently in jail, is expected to vote in the sixth phase of the Lok Sabha elections on May 25, 2024. However, if they remain in jail on that day, they will not be able to exercise their voting rights. . This is due to the lack of provision for voting by prisoners in India, regardless of their conviction status.
Also read: Amritpal Singh's likely election bid in jail: Can a person behind bars contest the polls in India? What does the law say?
It will also depend on what the Supreme Court says on April 29. The Supreme Court will hear on April 29 the petitions filed by former Jharkhand Chief Minister Hemant Soren and Delhi Chief Minister Arvind Kejriwal against their arrests by the Enforcement Directorate (ED). These petitions are before Justices Sanjiv Khanna and Dipankar Datta.
In the 2019 Lok Sabha elections, Kejriwal cast his vote at a polling booth in Delhi's civil area.
The right to vote
Article 326 of the Constitution of India provides that the right to vote in elections to Parliament or Assembly is based on adult suffrage.
“That is to say, every person who is a citizen of India and who is not less than eighteen years of age as on such date as may be determined on his behalf by or under any law made by the appropriate legislature, and who is not otherwise disqualified under the Constitution or any law made by the competent legislature on the grounds of non-residency, mental illness, crime or corrupt or illegal practices, shall have the right to be registered as a voter in such elections,” Article 326 reads.
The Representation of the People Act, 1951 specifies who cannot vote. According to Article 62(5) of this law, no person is eligible to vote if he/she is in a prison or under the lawful custody of the police.
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“No person shall vote in any election if he is in a prison, whether under a term of imprisonment or a transportation sentence or otherwise, or if he is in the lawful custody of the police,” the article reads.
There are more than five lakh undertrials, including Arvind Kejriwal, who cannot exercise his voting rights. However, the law does not prohibit prisoners in preventive detention from voting.
Supreme Court intervention
The constitutionality of Section 62(5) of the Representation of the People Act, 1951 has been challenged in court. For example, in 2019, the Delhi High Court reaffirmed that prisoners do not have the right to vote in the case of Praveen Kumar Chaudhary vs. Election Commission of India.
On May 4, 2024, the Supreme Court declined to hear a PIL challenging Section 62 (5) of the Representation of the People Act, 1951 and seeking voting rights for prisoners. The court said the Supreme Court had already upheld Article 62(5) twice.
“The constitutional validity of the provision under Section 62(5) of the Representation of People Act, 1951 has been upheld by a two Bench of this Court and later by a three Bench of this Court. In view of these decisions, we are not inclined to entertain the petition,” the bench headed by Chief Justice of India DY Chandrachud said.
Undertrials can contest elections.
While those behind bars cannot vote, they can participate in elections under the law. There is no provision in the law that prohibits interrogators from participating in elections unless they are convicted. Even for convicted politicians, the disqualification does not apply longer than six years after the end of the prison sentence.
Under existing laws, a person sentenced to imprisonment for not less than two years shall be automatically disqualified from participating in elections for six years from the date of release.
This rule is mentioned in Article 8 of the Representation of the People Act-1951, which deals with the disqualification of politicians from the assembly and parliament after they have been convicted.
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“A person who has been convicted of an offense and sentenced to imprisonment for a term of not less than two years, other than any offense referred to in subsection (1) or subsection (2), shall be disqualified from the date of such conviction and shall remain disqualified for a further period of six years since his release,” reads Section 8(3) in the Representation of the People Act, 1951.
There have been examples of people participating from behind bars and winning elections. Recently, jailed pro-Khalistan leader Amritpal Singh, who is currently in a jail in Assam, expressed his willingness to contest the Lok Sabha polls from Khadoor Sahib seat in Punjab as an independent candidate.
Singh, who heads the 'Waris Punjab De' group, was arrested in April last year after being booked under the National Security Act (NSA).
There is a long list of jailed politicians who won elections in India. In the 1977 post-Emergency elections, Socialist leader George Fernandes contested the elections from Muzaffarpur in Bihar while still behind bars. Fernandes defeated the Congress candidate by around 3 lakh votes.
In 1996, don politician Mukhtar Ansari, who died last month, contested the Mau Assembly seat in Uttar Pradesh on a BSP ticket while he was in jail. Ansar won.
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Published: Apr 28, 2024 09:51 IST