In India, jailed politicians permitted to contest elections, as the law does not prevent individuals from running for office while incarcerated. However, despite being able to stand as candidates, these individuals lose their right to vote while in jail. This distinction allows them to participate in the democratic process as candidates but not as voters.
The upcoming elections for the 18th Lok Sabha in India entering their final stage, and one of the interesting electoral battles to watch out for is the Khadoor Sahib parliamentary constituency in Punjab. This constituency notable as the seat where Amritpal Singh, a jailed Khalistani separatist currently incarcerated in a prison in Assam’s Dibrugarh, contesting as an independent candidate.
It is important to note that, no legal provision in India that prohibits Amritpal Singh from contesting the elections while being incarcerated. However, the incarcerated radical Sikh preacher does not have the right to vote in the ongoing elections, as he is unable to exercise his franchise due to his current circumstances.
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According to Section 8(3) of the Representation of the People Act, if a person is convicted and sentenced to a jail term of not less than two years, they are automatically disqualified from contesting elections for six years from the date of their release from prison. This means the disqualification only applies after a person has been convicted, not when they are merely an undertrial.
This is why Amritpal Singh, who currently an undertrial, can still contest elections from jail. In contrast, Congress leader Rahul Gandhi initially disqualified as a Member of Parliament (from Wayanad) after his conviction and sentencing in a defamation case by a Surat court in April 2023. However, after the Supreme Court put a hold on the sentencing, Rahul Gandhi later reinstated as an MP.
According to Section 62(5) of the Representation of the People Act, states,
“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.”
Few Politicians who ran for office while Incarcerated are,
Mukhtar Ansari, a former mob boss who transitioned into politics, successfully ran for the Mau Assembly seat in Uttar Pradesh in 1996. He was a candidate for the BSP, and he competed against the Congress stalwart Kalpnath Rai, even as he was imprisoned. Despite his incarceration, Ansari won the election. He, along with two others, was later implicated in the 2009 murder of Kapil Dev Singh. Ansari died of heart failure in March of this year.
Kalpnath Rai, a one-time Union minister, also contested and won an election while imprisoned. In the 1996 national elections, despite being detained under the stringent TADA (Terrorist and Disruptive Activities Act), he secured a victory in the Ghosi constituency, surpassing his opponent, Mukhtar Ansari.
Azam Khan, In the 2022 Uttar Pradesh Assembly elections, Azam Khan, a senior figure in the Samajwadi Party and then MLA for Rampur, triumphed by a margin of 55,000 votes while being detained. Following his incarceration, Khan found guilty in a 2019 case related to hate speech, leading to his disqualification from his legislative seat.
Nahid Hassan, Another member of the Samajwadi Party, Nahid Hassan, campaigned for and won the Kairana Assembly seat during the 2022 elections while he was behind bars.
Mohammad Shahabuddin, who passed away in 2017, secured victory in the Siwan constituency of Bihar while incarcerated during the 1999 elections. Subsequently, he was convicted of several homicides and received a life sentence.
Akhil Gogoi, a prominent RTI activist hailing from Assam, contested and won the Sibsagar seat in the 2021 Assam Assembly elections while in custody. Gogoi had been detained since 2019 due to his alleged involvement in protests against the Citizenship Amendment Act (CAA) in the state. He emerged victorious in the election from the historic Sibsagar constituency in Upper Assam by a margin of 11,875 votes.
The Supreme Court currently hearing a petition that sought expedited trials of criminal cases against lawmakers and faster investigations by agencies like the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).
Vijay Hansaria, serving as the Amicus Curiae in this case, submitted a report to the Court. The report states that there are 4,984 pending cases against Members of Parliament and Members of Legislative Assembly/Council, with 1,899 of these cases being over five years old.
The report further reveals that the total number of pending cases against lawmakers was 4,110 as of December 2018, and this figure rose to 4,859 by October 2020.
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