RIGHT TO CONTEST AND VOTE (Syllabus: GS Paper 2 – Polity)

Context: Recently, the head of the pro-Khalistan outfit Waris Punjab De, currently incarcerated in Dibrugarh, Assam, has his family leading his campaign for the Khadoor Sahib Lok Sabha seat amidst the Punjab elections.

Right to vote and the right to be elected

• Importance of Free and Fair Elections: In Indira Gandhi v Raj Narain(1975), the Supreme Court recognized free and fair elections as a fundamental aspect of India's constitutional framework and are a part of the ‘basic structure’ of the Constitution. Any laws or policies that would violate this principle could be struck down.

oThe Supreme Court clarified in 2006 (Kuldip Nayar v. Union of India) that while free and fair elections are vital, the rights to vote and be elected differ in legal standing.

• Nature of Voting Rights: The right to vote, termed as the right to elect, is considered a statutory right rather than a fundamental one, subject to legislative regulation. This means that voting is not a fundamental right and can be repealed.

oThe same was held for the right to be elected by the Bench, ruling that laws enacted by Parliament could regulate both these statutory rights.

• Regulation of Rights by Parliament: Both the right to vote and the right to be elected can be regulated by laws enacted by Parliament.
• Section 8 of the Representation of People Act, 1951: It mandates disqualification from contesting elections upon conviction for certain offenses.
• Application of Disqualification: It applies upon conviction, not mere charges, and entails a six-year ban from contesting elections starting from the date of release.
• Exceptions and Disqualification Reduction: The Election Commission can reduce or remove disqualification periods, as seen in the case of Sikkim Chief Minister Prem Singh Tamang in 2019.

oDisqualified individuals can still contest elections if their conviction is stayed on appeal, as clarified by the Supreme Court in 2019.

• Section 62 of the RP Act: It provides a series of restrictions on the right to vote including sub-clause (5) which states in broad terms “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police”.

oException: This provision effectively bars every individual who had criminal charges framed against them from casting their vote unless they have been released on bail or have been acquitted.