Defending or Defeating Democracy: Supreme Court Led Electoral Reform inJan Chaukidar

Abstract

The Supreme Court led an initiative to reform the electoral laws in India by delivering a string of judgments on the nuances of the Representation of the People Act. The effect of Jan Chaukidar is that a person in prison or in lawful custody of the police cannot contest an election. The critique is divided into three parts: First, elaborates the reasoning adopted by the Court, followed by a criticism of the ‘backward reasoning’ approach. Second, discusses the political implications of the decision; and the third, proposes an alternate line of reasoning that should have been adopted. While disagreeing with the decision, the critique essentially seeks to distinguish between the terms ‘elector’ and ‘voter’. To this end, first, it would differentiate the definition of the term ‘elector’ under the Indian law vis-à-vis the American law. Second, a classification under section 62(5) preventing a person in prison from contesting in an election would violate Article 14 (Equality before Law) of the Constitution of India. Third, such a disqualification has the effect of violating the principle of presumption of innocence until proven otherwise. Finally, the disqualification for being an elector is limited as compared to the disqualification from voting under section 62(5).