ORDER Ravi S. Dhavan, C.J.
1. India's claim that it is the world's largest democracy is not a statement which can be made with pride for all times to come. Unless some factors are checked, and immediately, this will become a hollow claim, because the contents of democracy are beginning to be eroded.
2. This is election time, all over the nation. Reporting in both print and broadcast media reveal; how this democracy is functioning. The election in Bihar has come in for much comment. If there is any serious critic who may say that the atmosphere is principled and ideal and all the voters came to vote, then these proceedings must be dropped. But is this the case?
3. The pulse of the people in a Democracy is the free press, and this election has been given a gruesome face by the Press. This Court has noted reports from the period, when the elections were announced. From then until today there has been brutality, violence and death. Death by violence seems a mundane exercise. The tragedy is only felt by the family who has lost a member. The obligation of this state of prevent this violence is conspicuous by its absence. But the newspapers, and particularly the Hindi Press, show the face of Bihar, and ordinary people have to interface with this face. Ordinary citizens must face this atmosphere to exercise their democratic right to vote.
4. The Press reports that the atmosphere in Bihar has been criminalized, the Press emphasizes that this has been done by politicians. This entire issue before the Court is about the criminal in politics. The Law and the Constitution do not encourage a politician with criminal antecedents, though to a certain extent they may suffer the situation. The Law specifically provides for keeping criminals away from the Representation of People, in the forums of Legislature and Parliament. If anyone has any suggestion that there is a pface for all in the Legislature, then the Court had thrown the debate open, but could not receive any serious argument that Parliament is the preserve of politicians being chased with allegations of criminality. Of course, everyone is innocent until proved guilty. This Court is not trying a trial nor deciding any particular election dispute, this is for other forums. This case is about who may have the right to stand for election, to file a nomination and run for office, and who may not.
5. These two cases concern (a) criminals in politics, and the question; (b) if the candidate is imprisoned and has no vote, may he stand for election?
"(5) 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; provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force."
7. This section of the Act has been challenged as unconstitutional in the Supreme Court, and upheld repeatedly in Mahendra Kumar Shastri v. Union of India and Anr., the Supreme Court observe :--
"The disability which is imposed under Section 62(5) of the Representation of the People Act is equally applicable to all persons similarly situate mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing peoples' representatives and there is no arbitrariness of discrimination involved....."
In Anukul Chandra Pradhan v. Union of India and Anr., the Supreme Court said :--
"In view of the settled law on the point, it must be held that the right to vote is subject to the limitations imposed by the statute which can be exercised only in the manner provided by the statute; and that the challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of Sub-section (5) of Section 62 of the Act is, therefore, not available and this petition must fail."
In the case of S. Radha Krishnan v. Union of India, when again the Supreme Court had an occasion to reflect on Section 62, and Sub-clause (5), in this case it observed that "any person who is confined in prison while serving a sentence of imprisonment on his conviction for any offence or is otherwise in lawful confinement in prison or in police custody for any reason, is not entitled to cast his vote in an election." The Supreme Court reiterated from Anukul Chandra Pradhan's case to say that "criminalisation of politics is the bane of society and negation of democracy" and that "the object of Section 62(5) is to prevent criminalisation of politics and maintain probity in elections and that any provision which furthers that aim and promotes the object has to be welcomed, as sub-serving a great constitutional purpose."
8. In these cases this section was upheld. It was held that this section was neither discriminatory nor in violation of any Constitutional right of a citizen. In an even earlier decision N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 at 71, the Constitution Bench held :--
"The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it."
Basically the same view was held in Jumuna Prasad Mukhariya v. Lachhi Ram, AIR 1954 SC 686 at 688.
9. The further question arising in this case is "though the man behind bars may not vote, may he stand for election? What is wrong with prisoners conducting their election campaigns while in custody?"
10. Great emphasis has been laid on understanding the prescription of the law relating to representing the people in the Republic. The law is the Representation of the People Act, 1951. Wherever the Act has provided for qualification or disqualification, terms are used in a generic sense, was a prerequisite to the right to vote. The Court is dealing with a situation when the law has prescribed for inhibition or reservations facing a particular candidate in being either an elector or a voter. The qualifications for membership of Parliament or for membership of State Legislatures, comes under Part II of the Act. Part II is titled "Qualifications and Disqualifications". Chapter 1 provides for Qualifications for Membership of Parliament. Chapter 2 deals with Qualifications for Membership of State Legislatures. Chapter 3 deals with Disqualifications for Membership of Parliament and State Legislatures. Sections 8 to 10-A which provide certain aspects of disqualification is not the subject of these cases.
11. In regard to the specific terms, there is a reason why in the interpretation or the definition clause, the Act of 1951 an "elector" has been defined and a "voter" has not been. The purpose of defining an "elector" is that it occurs in the Act working in the same plane for the meaning to be understood by reference to another enactment of the earlier year, that is the Representation of the People Act, 1950. The term, thus, has to be taken as a whole. First, the qualifications to be registered in an electoral roll. In this, three factors disqualify a person from coming anywhere near the electoral roll. These are (a) if he is not a citizen of India, or (b) is of unsound mind and declared so by a competent Court or (c) is for the time being disqualified from exercising his franchise under the provisions- of any law relating to corrupt practices and other offences connected with election.
12. If these conditions exist for a person seeking an entry on the electoral roll, that is, wanting to become a voter, he cannot be registered. Further, if registered, even after registration, the name of such a person shall forthwith be struck off. In so far as the last factor is concerned "a person who is for the time being disqualified" the moment the disqualification is removed under any law authorising such removal, the name will be reinstated in the electoral rolls. If all qualifications are possessed the person may see himself on the electoral list. One disqualification is inherent; not being a citizen of India. The other two disqualifications are limitations, which partake the nature of disenfranchising a person intending to be on the electoral roll. So far, "the elector" and "the voter" are interchangeable terms.
13. Disqualification and the inherent right to be registered as a voter at any election is referred to in the Constitution of India. The word "qualification" is not used, but the expression "disqualified" is used. This is in Article 326. It occurs in part XV on the subject "Elections". This Article reads :--
""326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.--The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than [eighteen years] of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election"
14. Elections are to be on the basis of adult suffrage. But the disqualification" may be under the Constitution or any law made by the appropriate Legislature. On the ground of (i) non-resident, (ii) unsoundness of mind, (iii) crime or (iv) corrupt or (v) illegal practice the right may be denied to a citizen of India to be registered as a voter.
15. This Court is dealing with the aspect of crime. The expression "crime" as it occurs in the Constitution in reference to elections is not an empty word nor a platitude. The expression is short, and used without elaboration, but it has been used by the founding fathers with much meaning. Crime may mean conviction, and yet it may also be understood as criminality. The Constitution does not spell out the details and expects the Law to provide for it. Has the Law provided for it is the issue before the Court.
16. Counsel for parties were heard, none of them submitted any indepth analysis of how the law lies in dealing with the subject matter of the debate before the Court. The issue clearly is whether the law has sufficiently provided for keeping the criminals out of elections, or has it yet to take care of such a situation by amendment or otherwise. Those appearing for Union of India or State of Bihar or the Election Commission of India, did not come out with any serious argument, beyond a half-hearted submission that criminality should be kept out of elections. Those appearing for interested parties seemed to suggest that offenders of law in lawful police custody or otherwise could be candidates and voters both. The interpreted submission were soaked with vested interest. The State of Bihar even shirked providing all the details of information which is readily available with the State's Home Department. What was left with the Registrar General, High Court, after orders were reserved in this matter, in the late afternoon yesterday after filing was closed, was not a responsible report on whether criminals or persons in the lawful custody of the police have entered the arena of elections. Notice was issued to the Advocate General of the State of Bihar in one of the cases, as this is a matter of public importance which affects Parliamentary democracy. The Advocate General kept away from the Court.
17. Not debated by any person when the debate was left open is an amendment which was made to the Representation of the People Act, 1951, with the insertion of the right to information as a statutory right in the conduct of elections. The 1951 Act was amended in 2002. The Act as amended, with the insertion of Section 33-A, read :--
"33-A. Flight to information.--(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under Sub-section (1) of Section 33, also furnish the information as to whether,---
(i) he is accused, of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction; (ii) he has been convicted of an offence [other than any offence referred to in Sub-section (1) or Sub-section (2), or covered in Sub-section (3), of Section 8] and sentenced to imprisonment for one year or more. (2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning Officer the nomination paper under Sub-section (1) of Section 33, also delivers to him an affidavit sworn by the candidate in a prescribed from verifying the information specified in Sub-section (1).
(3) the Returning Officer shall, as soon as may be after the furnishing of information to him under Sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under Sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered."
18. A new concept was being added to the manual of election law. Previously conviction as a consequence of criminality was a disqualification. The Amendment does not speak of disqualification. But leaves no choice in receiving information about it. The voter who will stand for election, the candidate, the elector, as he must be if he stands for election, will be obliged to provide information about himself, including details, if he is accused of any offence referred to in Section 33-A. Conviction is also mentioned in this new section and this leads to a disqualification in the chapter which provides for disqualification, but this is not the subject of debate in these proceedings. What is relevant is that the voter who is a candidate, or the person who is a proposer for the candidate, both are obliged to disclose whether they have been accused of a crime, as prescribed. Thus it is very clear that a new concept was coming, and with the purpose of cleansing politics. The criminal, and the person accused of crime, are noticed by the law which prescribes for elections.
19. The Court now reverts to the Constitution of India, which has lain for more than half a century. It uses the expression "crime". Crime is a stigma that can attract disqualification, for how long or how short a period then is a provision the Constitution permits the Law to prescribe. Thus the amendment in 2002. Thus the compatibility with the three earlier decisions of the Supreme Court that the streams of politics in the democratic elections are to be kept clean, so that India does not suffer the bane of criminalisation of politics, a reality which unfortunately has happened."
20. If the amendment (Section 33-A) had not been made a very vital link with the Constitution when it refers to crime in Article 326, the logic and the continuity with certain other provisions was missing. This was the advantage which was being taken by persons with tainted records. The question here is not whether they are citizens of India, for here comes in the very fundamental concept which the Supreme Court delivered when interpreting the law of elections and the Constitution half a century ago. The Supreme Court said that the right to cast a vote, as well as of a voter stand as a candidate, is not a fundamental right given by the Constitution. These were statutory rights, the Law could confer it, the Law could take it away. Elections are controlled by the law of the Legislature, the Constitution of India does not provide all the rules of the game. But the rules of the game have to be as strict as those of any game which kicks up a hysteria. It's like a leg before wicket ruling, where you're neither bowled out nor caught out. Cover a wicket arid get a ball on your leg pads and you're out. It's not fair to cover a wicket. Why is this rule of the game so strict? A fair opportunity must exist to get the player out if he presents an occasion. It's a foul to cover a wicket. Criminality is also a foul in elections. It is not a qualification. It is certainly a disqualification.
21. Section 33-A as it was brought as an amendment, thus was completing a circle to explain and put logic into another statutory provision which has every intention to keep the criminal out, even though he may not be convicted but only accused, and held in custody. The newly-added section does not keep anyone out of the election, but it does help explain the intent of the Legislature, the concern with criminality. The Law that deals with this directly, the Law dealing with disqualification as referred to in the Constitution, is Section 62 of the Representation of the People Act, 1951. The Supreme Court has reflected on it and upheld it. Section 62 reads :--
"62. Flight to vote.---(1) No person who is not, and except as expressly provided by this Act every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.
(5) 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;
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force."
22. The debate before the Court is particularly on Sub-section (5) of Section 62. To understand its true import one needs to understand that this right conferred, whether on a voter or on a candidate who has to be a voter, recognizes the qualification as a generality of all who come within the arena of elections. Suffice it to say that it is not anybody's case that a person who will stand for election, call him a candidate or an "elector", will not have the inherent qualification, call it generic or otherwise, of being a voter first. But Sub-section (5) is about those accused of crime, imprisoned, undertrails, convicts, or transportation or otherwise, or in the lawful custody of police. This section is like an anaesthesia given to a certain category of those who wish to participate in an election, to keep them out of the election arena for as long as it has its effect. This anaesthesia in election law is known as being disenfranchised, legally deprived of the right to vote.
23. The relevant section of the Representation of the People Act, 1951 says :--
"4. Qualifications for membership of the House of the People.--A person shall not be qualified to be chosen to fill a seat in the House of the People unless,--
(a) in the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Castes, whether of that State or of any other State, and is an elector for any Parliamentary constituency; (b) in the case of a seat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts of Assam), he is a member of any of the Scheduled Tribes, whether of the State or of any other State (excluding the tribal areas of Assam), and is an elector for any Parliamentary constituency; (c) in the case of a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district; (cc) in the case of the seat reserved for the Scheduled Tribes in the Union Territory of Lakshadweep, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency of that Union Territory; (ccc) in the case of the seat allotted to the State of Sikkim, he is an elector for the Parliamentary constituency for Sikkim; (d) in the case of any other seat, he is an elector for any Parliamentary constituency; 24. Thus, to be a candidate for election, one must be an "elector". Learned counsel, opposing these petitions, have argued that those lodged in jails, though deprived of the right to vote under the Act, are yet "electors" and entitled to stand for election. Thus this case requires a clear definition of "elector" and a "voter".
25. In American election cases, how have terms been defined? "While the terms 'electors' and 'voters' are sometimes used interchangeably, their meaning is not precisely the same, electors being properly applied to those entitled to vote, rather than to those actually voting, while 'voters' is implied in both senses." Clayton v. Hill City, 207 P. 770, 11 Kan 595, Words and Phrases, Permanent Edition, Vol 44, p. 461.
26. The italicised portion above makes clear that electors are those who have the legal right to vote, those who have not had that right taken away by law, while "voters" are those who have this right and also exercise it by voting in an election.
Other interpretations are these :--
In a general sense, an elector is one who electes or has the right of choice. Specifically, an elector is one who has a right to vote for public officers or the adoption of any measure; a person possessing the qualifications fixed by the Constitution, and duly admitted to the privileges secured and in the measure prescribed by that instrument. Corpus Juris Secundum, Vol. 29, p. 16.
The word "elector" is a technical term descriptive of a citizen having constitutional and statutory qualifications to vote. Words and Phrases, Permanent Edition, Vol. 14, p. 213.
27. An "elector" is, thus, a person legally entitled to vote. If a person is in prison, under the Representation of the People Act, 1951, that person is debarred from voting, unless he or she is specifically under preventive detention. He or she is not legally entitled to vote at the time. Thus, the prisoner is not an "elector" and cannot stand for office.
28. In Mahendra Kumar Shastri v. Union of India and Anr., (supra) this is stated very clearly; "The disability which is imposed under Section 62(5) of the Representation of the People Act is equally applicable to all persons similarly situate mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing people's representatives."
This is a very clear and exact statement of the Law of the land.
29. It is clear that keeping the political system pure has been concern of the Supreme Court, thus the subject that is engaging the attention of this Court is nothing new.
30. The only new aspect is that this established, healthy principle is being ignored. What is new is that in these parts a sort of immunity has descended, in despair, a "chalta hai" attitude to suffer the situation. Everyone talks about the criminalisation of politics, the media flash pictures of absconders voting and campaigning, of persons in lawful custody of the police standing for election, and no one seems ready to step in and stop it. The State Government of Bihar, has placed on record it's acceptance that absconders have participated in elections to vote, could they even be electors? The State Government accepts that persons in lawful custody of the police are electors. They say they were only disqualified as voters. Could they be candidates? the "crime" election has crept into elections in violation of and against the spirit of the Constitution, Article 326.
31. What is to be the relief to be given in these petitions? These petitions have high-lighted many aspects which are the daily talk among the people of Bihar, though very few may dare speak openly. One is about absconders, jumping bail and hoodwinking the Court but landing up before polling officer to cast their vote, with or without connivance of the police, another scandalous situation. All this has happened in public gaze. Such persons have defiled Parliamentary democracy and broken the rule of Law. This should be a public shame for the state administration. What are the remedial measures in this?
(A) The Director General of Police is responsible in allowing a mockery to be made of the election process, the rule of law and the Courts. This is more a matter for the Government to see, and certainly an embarrassment for it, unless the Government wanted it. The District Officials, where such absconders exercised their franchise, whether the District Magistrate or the Superintendent of Police, are to be proceeded against forthwith for they have sided with the criminal. Insofar as the absconder is concerned, non-bailable warrants should be issued for immediate arrest so that he is put in custody forthwith.
(B) In the case of those who are in the lawful custody of the police who were encouraged in their electioneering, allowed to hold darbars when deprived of their liberty, it can be said the election process has been polluted and seen fear, terror and favour. Such persons were disenfranchised and thus could not be candidates. The Election Commission of India is obliged to take appropriate remedial action.
(C) Giving the freedom available to an ordinary citizen of holding conferences and darbars when in lawful police custody conveniently arranged in a public hospital under a cover of medical treatment is reserved for a select few undertrials or those in police custody. An ordinary person cannot arrange for this paradox of freedom inside bars. Again in public gaze, there is sufficient material on record, that the administration of the state has tacitly connived and abetted the situation. At election time the sanctity of the election has been defiled by such candidates enjoying luxuries in public hospitals and participating in politics. The election over, now the State Government is reporting that they have been sent behind bars. Perhaps the purpose is over. All the damage which could be done has been done. Again the process of the election has been desecrated. The man in police custody seeking freedom in a public hospital has mocked the law, the administration and the machinery which administers and monitors the election. Again the Election Commission will have to take all these factors into account whether such elections need to be countermanded or not. If the administration of the State Government of Bihar had to provide such favours to influential people in lawful police custody, then the best of medicare could have been provided within the confines of the jail. No one says do not provide medical treatment, but do so within the walls of the jail. Such persons are entitled to the same treatment as other persons under lawful custody of the police. They are not entitled to luxury.
32. The relief in these petitions cannot be directed at any particular named person, voter or elector. These petitions are basically of judicial review on a certiorari action, as a certificate action whether the players in the election and the election itself, conform to the norms of a parliamentary democracy, preserve it, prevent criminalisation of politics, and preserve the Republic as envisioned by the founding fathers when enacting the Constitution. This should be the concern of the Election Commission of India also. Election malpractices are the jurisdiction of the Tribunal or the Court where election disputes are tried. Previously they were Election Tribunals, today disputes during the conduct of elections are filed at the High Court as a specially designated Court. But such disputes are a matter of lis between Candidate A and Candidate B. The issue of crime as attached to candidates or voters pollutes the entire election process. It effects the sanctity of elections as a whole. It taints democracy.
33. A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is a privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.
34. Resist as such persons may, the Law does not even suffer them to vote, but keeps them away from elections. The mediocrity is that over the passage of years the body politic is getting immunized by the presence of criminals in politics, and a person who should have been behind bars and could neither be a voter nor an elector, is on the election scene, as large as life. Those who are to keep the law look the other way. The Election Commission of India is yet to get strict and not get immunized itself or get used to the presence of criminals in politics, or the person who is supposed to be in the lawful custody of the police being permitted to play in the elections. These persons have been disenfranchised by law. The Constitution of India allowed the Law to provide for these situations, the Law has provided for them, and those disenfranchised by Law should not have been permitted in the arena of elections. They are to be kept out of. The Elections in which they have participated have been desecrated. Parliamentary Democracy with such persons participating in it is endangered.
Such are the views of the Court. They are based on the reality of the situation.
35. It is entirely up to the Election Commission of India to decide what action to take, even if it be countermanding the elections wherever such persons have participated as candidates. The satisfaction, the obligation and the responsibility is of the Election Commission of India. As these were matters of public concern in interpretation of matters of public law, thus the Court has expressed its views.
36. The Court expects the Election Commission of India to act and act with speed before the declaration of results. Otherwise, in this state, the territorial jurisdiction within the purview of this High Court, illegalities will have been committed. Between votes, or candidates or electors, the absconders and persons in lawful custody of the police who have participated in the election had no right to do so. Such is the Law, and upon it, it is so declared.
Shashank Kumar Singh, J.
37. I agree.