Imprisoned Amritpal Singh’s possible election candidacy: Can a person in jail contest polls in India? What does the law say?

Pro-Khalistan leader Amritpal Singh, who is currently in jail in Assam, is keen to contest the parliamentary elections from Punjab’s Qadur Sahib seat as an independent candidate.

Singh, who heads the ‘Walis Punjabi De’ organization, was arrested in April last year after he was booked under the National Security Act (NSA).

This raises the question whether an incarcerated person can participate in elections in India. The issue has been debated for a long time and has reached courts including the Supreme Court of India. And there are countless politicians who ran and won elections while in prison. Let’s analyze the nuances of this issue from a legal perspective.

What does the law say about jailed politicians?

First, no one can be barred from participating in elections unless convicted of a crime. Even politicians who have been convicted of a crime cannot be disqualified for more than six years after the end of their sentence.

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According to current law, if a person is convicted and sentenced to prison for more than two years, he or she is automatically disqualified from participating in elections for six years from the date of release.

This rule is mentioned in section 8 of the Representation of the People Act 1951, which deals with the disqualification of politicians from parliament and parliament after conviction.

“A person who has been convicted of any offense, other than an offense referred to in subsection (1) or subsection (2), and sentenced to imprisonment for a period of two years or more shall be ineligible from the date of the conviction. shall be subject to a continuing sentence of imprisonment and shall be disqualified for a further period of six (6) years after release,” states Section 8(3) of the Representation of the People Act 1951.

6 years ban

The six-year ban on convicted politicians from contesting elections has been challenged in court numerous times. Last year, a case asked the Supreme Court to consider imposing lifetime bans on lawmakers found guilty of certain crimes, rather than the current six-year ban.

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In September 2023, Chief Advocate Vijay Hansaria, who is assisting the Supreme Court as a bench during the hearing of a PIL seeking speedy trial of politicians in criminal cases, said that if it is discovered, it will affect the election of MPs. He had submitted a report asking for his permanent banishment. He is guilty of moral corruption.

On November 9, the SC issued guidelines to the high court to monitor expeditious disposal of criminal cases against Members of Parliament (MPs) and Members of Legislative Assembly (MLAs). It said nothing about banning convicted politicians for life.

Rahul Gandhi incident in April 2023

For example, in April 2023, Congress leader Rahul Gandhi was disqualified as a Member of Parliament (Wayanad) following his conviction in a defamation case by a court in Surat. The order was in accordance with Article 102(1)(e) of the Constitution of India read with Section 8 of the Representation of the People Act, 1951.

The order means Rahul Gandhi cannot contest elections for eight years from April 2023 and carries a two-year prison sentence and six years of disqualification upon release. It was supposed to happen.

However, the Supreme Court stayed the disqualification and Rahul Gandhi was reinstated as a Member of Parliament (MP).

Amendment of rules

In July 2012, the Supreme Court ruled in a landmark ruling that persons in prison or police custody cannot contest elections to legislative bodies.

The ruling was hailed as potentially ending the culture of politicians on trial contesting elections from behind bars. The court said a person in police custody has no right to vote.

However, four months later, Parliament passed the Representation of the People (Amendment and Verification) Bill, 2013, retaining the right of incarcerated people to contest polls, thereby nullifying the SC order.

The government has repeatedly opposed any efforts to ban convicted politicians from participating in elections for life. In December 2020, the federal government opposed a petition to impose lifetime bans on convicted politicians. The U.S. Attorney’s Office filed this filing with the Supreme Court in a case related to election reform.

Famous wins from behind bars

In the 1977 post-Emergency elections, socialist leader George Fernandes stood for election from Muzaffarpur in Bihar while he was still in prison. Fernandez defeated the parliamentary candidate by a margin of about 300,000 votes.

Mukhtar Ansari, a 1996 don-turned-politician who passed away last month, contested the Mau Assembly seat in Uttar Pradesh on a BSP ticket while in prison. Ansari won.

Former Union minister Kalpanath Rai, who was jailed in the 1996 TADA case, contested the 1996 Lok Sabha polls from prison and won in the Ghosi constituency. Rai defeated Mukhtar Ansari.

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Veteran SP leader and nine-time Rampur MLA Azam Khan won the Rampur Assembly seat by a margin of 55,000 votes while in jail in the 2022 Uttar Pradesh Assembly elections. Khan was later disqualified from parliament following his conviction in a 2019 hate speech case. Assembly seat. Another SP leader, Nahid Hassan, contested the 2022 Kairana assembly seat from prison.

The late Shahabuddin won the Siwan seat from prison and was elected in 1999. He was later convicted of multiple murders and sentenced to life in prison. Assam RTI activist Akhil Gogoi contested the 2021 Assam Assembly polls from Sibsagar seat while serving his sentence and won.