Representation of People Act, Section 62(5): An Explanation

By Tashmayee Sarkhel

Published on: 04 August 2022 at 20:49 IST

This article discusses the perspective of the Representation of People Act, 1951^[1] and the underlining Section 62(5)^[2] under it.

According to Section 62(5), a person who is imprisoned, whether as a result of a term of imprisonment, transportation, or other punishment or who is in the authorized custody of the police, is not eligible to vote in any election: With the caveat that nothing in this subsection shall apply to anyone currently subject to preventive detention under any legislation in force. [Nothing in subsection and shall apply to a person who has been permitted permission under this Act to vote as a proxy for an elector insofar as he votes as a proxy for such elector].

The Representation of the People Act, 1951 is a law passed by the Indian Parliament to regulate the election of the Houses of Parliament and the House or Houses of the Legislature of each State, the requirements and exclusions for membership in those Houses, the use of corruption and other illegal activities during or in connection with such elections, and the resolution of questions and disagreements that may arise. Dr. B.R. Ambedkar, a law minister, presented it to the legislature. Before the first general election, the Act was passed by the interim parliament by Article 327^[3] of the Indian Constitution.

The Representation of the People Act:

Part XV^[4] of the Indian Constitution, Articles 324 to 329^[5], lays out the electoral system for the nation. The Constitution grants the Parliament the authority to create laws for all issues related to elections for the State Legislature and the Parliament.

To oversee elections in the nation, the government established the first RPA in 1950.
The provisions of this Act cover:
- Direct elections are used to choose who sits in the Lok Sabha and the Legislative Assemblies.
- Election eligibility requirements for the electorate.
- The drawing of boundaries for the Lok Sabha and Assembly constituencies. The Delimitation Commission would choose the size of the constituencies.
- After proper consultation with the Election Commission, the Indian President may change the constituencies.
- Assembling the electoral roll. One cannot register for more than one constituency. If determined to be of unsound mind or not an Indian citizen, he or she may be disqualified and prohibited from voting.

Representation of People Act, 1951 –

This Act lays out guidelines for how elections would be held in India.
- Additionally, it discusses illicit election-related acts and corruption.
- The Act includes mechanisms for dispute resolution in election-related concerns.
- Additionally, it discusses the eligibility requirements and explanations for de-qualifying MPs and MLAs.

This Section describes the key components of the Representation of People –

Elections to the Lok Sabha and the Rajya Sabha are only open to eligible voters.
Only candidates from those groups are eligible to run for seats reserved for members of Scheduled Caste and Tribe communities.
After being released from prison, anyone found guilty of any of the following will be unable to run in elections for six years:
- encouraging discrimination and animosity between classes
- election swaying
- Bribery
- Other serious crimes against women, such as rape
- escalating religious strife
- demonstrating invulnerability
- exporting or importing restricted items
- selling or using chemicals, including illegal substances
- terrorist activity of any kind
- have spent at least two years behind bars
If the candidate has engaged in any corrupt activity, they may also be disqualified from consideration for relevant government contracts.
Failure to disclose one’s assets might also lead to disqualification. Within ninety days after taking the oath of office, the candidate must disclose all of his or her assets and debts.
All political parties must register with the Election Commission by the Act. Any change to the party’s name or address must be reported to the Commission.
A party may accept contributions from any Indian citizen or business, but not from those that are owned by the government. Additionally, contributions from foreign organizations are prohibited.
Every political party is required to disclose any donation above 20,000 received from an individual or business.
A party is recognized as a national party if it receives at least 6% of the legitimate votes for assembly elections in at least four states or wins at least 2% of Lok Sabha seats from at least three states.
A party will qualify as a state political party if it receives at least 6% of the vote in the state assembly elections or wins at least 3% of the total seats in the state legislature.
For the Lok Sabha elections, candidates must pay Rs. 25000 as security, and Rs. 12500 for all other elections. The security deposit is reduced by 50% for candidates from the SC/ST groups.

Right to Vote (Section 62):

No one who is not now listed on the electoral roll of any constituency, and except as expressly specified by this Act, no one who is currently listed on the electoral roll of any constituency, shall have the right to vote in that constituency.
If a person is subject to any of the disqualifications listed in Section 16^[6] of the Representation of the People Act of 1950, they are not eligible to vote in any constituency during an election (43 of 1950).
A person may not vote in more than one constituency of the same class during a general election, and if they do, their votes in all of those constituencies are invalid.
No one may vote more than once in the same constituency at any election, even if their name has appeared on the electoral roll more than once. If they do, all of their votes in that constituency are null and worthless.
No one may participate in any election while they are detained in a facility, whether they are serving a sentence of incarceration, transportation, or another type of confinement, or while they are in the legal custody of the police:

However, nothing in this sub-section shall apply to someone who is being held without bail due to preventive detention under any currently in effect law.

[Furthermore, provided that a person whose name has been placed on the electoral roll shall not cease to be an elector because of the ban to vote under this subsection.]

[A person who has been granted permission under this Act to cast a vote on behalf of an elector since that person votes on that elector’s behalf is exempt from the provisions of subsections (3) and (4).]

Section 62 (5) of Representation of the People Act, 1951:

The Delhi High Court reaffirmed the legitimacy of Section 62(5) of the Representation of the People Act, 1951, which denies inmates the ability to vote in elections, on February 11, 2020, in Praveen Kumar Chaudhary & Ors. Vs. Election Commissioner of India and Ors^[7]. The Section reads “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,” the section reads. “However, nothing in this sub-section shall apply to a person subject to preventive detention under any law currently in force.”

In its ruling, the Delhi High Court emphasized the significance of the Supreme Court’s earlier decision in Anukul Chandra Pradhan, Advocate Supreme Court Vs. Union of India & Ors.^[8], in which it was determined that Section 62(5) of the RPA did not violate the rights to equality and life guaranteed by Articles 14 and 21^[9], respectively, because the legislature was free to classify people reasonably and bar them from exercising their statutory right to vote. The Supreme Court also emphasized the infrastructure issues with allowing convicts to vote in Anukul Chandra.

Several legal and logical issues with Section 62(5) of the RPA were once again brought to light by the Delhi High Court’s decision, and these issues have only grown worse in light of the Supreme Court’s decision in Anukul Chandra.

One of a person’s most fundamental rights in a democracy is the right to vote. In-State (NCT of Delhi) Vs. Union of India, 2018^[10], the Supreme Court of India said that the right to vote is the cornerstone of democracy:

“Thus, the democratic set-up has its limbs firmly entrenched in the ability of people to elect their representatives and the faith that the representatives so elected will best represent their interest. Though this right to vote is not a fundamental right, it is a right that lies at the heart of a democratic form of Government. The right to vote is the most cherished value in a democracy as it inculcates in the people a sense of belonging.”

In a similar vein, the Supreme Court determined in Mohinder Singh Gill Vs. Chief Election Commissioner ^[11]:

“Nothing can diminish the overwhelming importance of the cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen in choosing his representatives for governing the country.”

Section 62(5) of the RPA appears to be a direct assault on the fundamental democratic ideals of India when read in light of the aforementioned two rulings. The Supreme Court ruled in Anukul Chandra that preventing inmates from voting is necessary to “avoid the criminalization of politics and maintain election integrity.” According to this perspective, it should have also been illegal for inmates to run for office since, if they do, their election to the legislature will make it simpler to criminalize politics. Additionally, it is not yet obvious how voting by those who have been charged but are out on bond will not lead to the “criminalization of politics” as opposed to voting by those who are being held pending trial.

It is plausible to claim that Section 62(5) of the RPA negates the maxim that “a hundred wrongdoers should be liberated but not even one innocent should be punished” given the low conviction rate. The State’s own incapacity to address the infrastructure issues is the reason why inmates are denied their valuable right to vote.

Article 3^[12] of the UDHR is underlined in the several PILs that have been brought before Indian courts over Section 62(5), the violation of Article 326^[13] of the Indian Constitution, Article 21^[14] of the Universal Declaration of Human Rights (UDHR), and Article 51^[15] of the Indian Constitution.

Conclusion:

Everyone should be permitted to vote in a healthy democracy because their representation is just as vital as everyone else’s, whether they are incarcerated pending trial or are already serving a sentence. For instance, some criminal statutes are out-of-date, and if a candidate for office pledges to repeal them, it is important to defend prisoners who are subject to those statutes. In addition, the general portrayal of any prisoner, whether or not they are convicted, is essential since, if a crime is against society, it is also a product of different socioeconomic factors.

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