Call Us Now

+91 9606900005 / 04

For Enquiry

Legal Framework of Voting Rights and Candidacy


Amritpal Singh, the imprisoned leader of the pro-Khalistan group Waris Punjab De, announced his candidacy for the Lok Sabha elections from Punjab’s Khadoor Sahib constituency on June 1. Despite facing criminal charges, he is eligible to run for office unless convicted. However, like other inmates in Indian prisons, he will be prohibited from voting in the upcoming elections.


GS II: Polity and Governance

Dimensions of the Article:

  1. Legal Framework of Voting Rights and Candidacy
  2. Disqualification Due to Criminal Convictions and Related Challenges
  3. Restriction on Voting Rights for Confined Individuals

Legal Framework of Voting Rights and Candidacy

Nature of Voting and Election Rights:

Statutory Status:

  • Indira Gandhi v. Raj Narain (1975): The Supreme Court affirmed that free and fair elections are integral to the Constitution’s basic structure, nullifying any laws contravening this principle.
  • Kuldip Nayar v. Union of India (2006): The Supreme Court determined that voting is a statutory right, not a fundamental one, and subject to regulation by parliamentary laws. This ruling also applies to the right to be elected.

Disqualification Due to Criminal Convictions and Related Challenges

Prohibition on Candidacy Post-Conviction:

  • Representation of People Act, 1951 (RP Act): Section 8, titled “Disqualification on conviction for specific offences.”
    • Individuals convicted of certain offences are barred from contesting elections to Parliament or state legislatures from the date of their conviction.
    • They face a six-year disqualification period starting from their release date.
    • Disqualification is applicable only upon conviction, not merely by being charged.
Issues and Legal Challenges:

Challenges to Section 8 of the RP Act in the Supreme Court:

  • 2011 Petition: Filed by the Public Interest Foundation, arguing for disqualification of individuals with criminal charges or false affidavits. The Supreme Court ruled that only the legislature could amend the RP Act.
  • 2016 Petition: Sought permanent disqualification of convicted individuals; the case is ongoing.

Delays in Criminal Proceedings Against MPs and MLAs:

  • November 2023: The Supreme Court highlighted delays in criminal cases involving MPs and MLAs, directing Chief Justices to ensure prompt and effective resolution through a suo motu case titled “In Re: Designated Courts for MPs/MLAs.”
  • April 2024 Report: Indicated that 4,472 such cases were still pending.
Exceptions to Disqualification:
  • Election Commission of India (ECI) Authority to Alter Disqualification Period:
  • 2019: The ECI used its power under Section 11 of the RP Act to reduce the disqualification period for Sikkim Chief Minister Prem Singh Tamang, who had been released after a one-year prison term for misappropriation of funds and subsequently won a bye-election.
  • Section 11 empowers the ECI to remove or reduce disqualification, except under Section 8A.
Supreme Court Rulings on Stayed Convictions:
  • Disqualified MPs or MLAs can contest if their conviction is stayed on appeal.
  • In 2019, the Supreme Court ruled that staying a conviction removes the associated disqualification.

Restriction on Voting Rights for Confined Individuals

Prohibition Under Section 62 of the RP Act:
  • General Restriction: Section 62 of the RP Act stipulates that individuals confined in prison or police custody are not permitted to vote, with the exception of those under preventive detention.
Exclusion Based on Criminal Charges:
  • Voting Bar: Section 62 of the RP Act also prevents individuals facing criminal charges from voting unless they are released on bail or acquitted.
  • 1997 Supreme Court Ruling: In the case of Anukul Chandra Pradhan v. Union of India, the Supreme Court upheld this provision, rejecting arguments that it violated the right to equality by discriminating against undertrials and those unable to post bail.
Judicial Reasoning:
  • Statutory Nature of Voting Rights: The court reaffirmed that voting is a statutory right, subject to statutory limitations.
  • Resource Constraints: The court acknowledged that providing infrastructure and deploying police resources would be challenging.
  • Conduct-Based Incarceration: The court ruled that individuals in prison due to their conduct cannot claim the same freedoms of movement, speech, and expression.
  • Reasonableness of Restrictions: The court concluded that restrictions on prisoners’ voting rights are reasonable and linked to keeping individuals with criminal backgrounds out of the election process.

-Source: Indian Express

June 2024