[Answered] The present legal structure of India to keep the criminals from the electoral process needs restructuring. Discuss.

Recently, two MLAs were prevented from casting their votes according to Section 62(5) of the Representation of the People Act, 1951. In the past, the Supreme Court has observed that the intent of this provision is to maintain the integrity of elections by excluding ‘persons with criminal background’ from participating in them.

Issues with present legal structure of electoral process:

• Section 62(5) of the Representation of the People Act, 1951, does not use conviction as the yardstick for disenfranchisement; instead it uses confinement. As a result, under trial prisoners (who constitute over 75% of India’s nearly 5 lakh prisoners) cannot vote.
• Even A person detained in civil prison for failing to repay a debt, cannot vote. But a person who has been convicted for a criminal offence and has managed to secure bail can vote.
• This puts Section 62(5) in direct collision with Article 14 of the Constitution. Whenever a law treats two groups of persons unequally it must satisfy a set of basic tests under Article 14 to be valid.
• Section 62(5) treats a group of people differently by stripping them of the right to vote. This has no rational link with the alleged object of the law, i.e., keeping criminals away from the electoral process.

What can be done?

• As alternatives, the provision could have disenfranchised persons convicted of certain heinous offences or those sentenced for a minimum duration.
• In the U.K., for instance, only convicts sentenced to prison for four years or more cannot vote.
• In Germany, only persons convicted of certain political offences are disenfranchised.
• The distinction created by the law must be based on coherent differences between the two groups of persons, and these differences must have a rational link with the objective that the law seeks to achieve.

The apex court must re-examine the issue in the totality of its circumstances and Parliament must replace the provision with a tightly worded version disenfranchising only certain classes of prisoners.