Why Amritpal Singh can contest election, but Arvind Kejriwal can't vote

New Delhi,UPDATED: Apr 27, 2024 10:24 IST

Elections across the world have their share of paradoxes and anomalies. One such paradox has surfaced in India during the 2024 Lok Sabha election. It is about two men locked up in two different jails, 2,300 km away.

'Waris Punjab De' chief Amritpal Singh is in a jail in Assam's Dibrugarh while Delhi Chief Minister Arvind Kejriwal is in Tihar Jail. But how does the Lok Sabha election connect the two very different individuals?

While the Khalistan sympathiser will be contesting the Lok Sabha polls from the confines of Dibrugarh Jail, Arvind Kejriwal, an elected representative, cannot even vote.

In India, people can contest an election from prison, but they can't vote from jail. This is the paradox.

CANDIDATES HAVE WON ELECTIONS FROM JAIL

Separatist Amritpal Singh, who has been in jail since April 23, 2023, under the stringent National Security Act, will reportedly contest as an Independent from Punjab’s Khadoor Sahib Lok Sabha seat.

"I met Bhai Saheb (Amritpal) in Dibrugarh Central Jail. I requested him that in the interest of the Khalsa Panth, he should contest elections from Khadoor Sahib to become a Member of Parliament this time," Amritpal’s counsel Rajdev Singh Khalsa said earlier. "Bhai Saheb has agreed, and he will contest the elections as an independent candidate," he added.

Amritpal Singh was arrested in Moga district’s Rode village in Punjab, after a game of cat and mouse for more than a month. He was wanted by the police after Amritpal Singh had barged into a police station in Amritsar, along with supporters, carrying guns and swords.

He had issued an 'ultimatum' for the release of his aide Lovepreet Singh Toofan. The mob clashed with the police personnel at a police station outside Amritsar.

Following that, he was arrested and sent to the Dibrugarh Jail, in Assam's far east.

Amritpal Singh, who once said he did not adhere to the Indian Constitution, is now inching towards Indian democratic politics, which necessitates one to take the oath of the Constitution.

A person charged under the NSA will be contesting the Lok Sabha election. However, people contesting from jails isn't unusual in India.

In 1996, don-turned-politician Mukhtar Ansari contested Uttar Pradesh's Mau Assembly seat on a BSP ticket while he was in prison. Ansari, who died last month, won the election from jail.

Mukhtar Ansari, who was incarcerated in 2005, went on to win the Mau Assembly seat from jail thrice, in 2007, 2012 and again in 2017.

Rashtriya Janata Dal chief Lalu Prasad Yadav was in jail in the fodder scam case during the 1998 Lok Sabha election. He contested Bihar's Madhepura Lok Sabha seat and won from jail.

KEJRIWAL IN JUDICIAL CUSTODY, CANNOT VOTE

While people charged with crimes have contested elections, undertrials who haven't been found guilty haven't been able to cast their votes.

There is no provision for voting from prisons in India, even for those who haven't been found guilty. In the Praveen Kumar Chaudhary vs Election Commission of India case of 2019, the Delhi High Court reaffirmed that prisoners do not have a right to vote.

This also could be true for Delhi CM Arvind Kejriwal.

Delhi votes on May 25 and everything depends on Kejriwal's hearing in the Supreme Court on April 29.

Kejriwal, who was arrested by the Enforcement Directorate on March 21, is housed in New Delhi's Tihar Jail, following multiple custody extensions and rejections of bail pleas.

That is so because of the provisions of the Indian laws that govern elections in the country.

Arvind Kejriwal is just an example. There are over five lakh undertrials in India who cannot exercise their franchise.

Likewise, Jharkhand CM Hemant Soren, who was arrested by the Enforcement Directorate (ED) in a money laundering case linked to an alleged land scam, might not get to vote if the Supreme Court doesn't order his release.

Hemant Soren moved the Supreme Court on Wednesday challenging his arrest.

WHAT ALLOWS AMRIPTAL TO CONTEST, BUT KEEPS KEJRIWAL FROM VOTING?

There were a total of 5,54,034 prisoners confined in various jails across India, according to a National Crime Reports Bureau (NCRB) report of 2021.

Since Amritpal Singh is not convicted yet, he can contest the election. Even the ones who are convicted can contest six years after the end of their jail term.

A jailed person, like Amritpal Singh, can file their nomination papers from the prison with the help of a representative. In case a jailed candidate wins the elections, he or she can be released from jail to take the oath, as there is no provision to administer the oath inside the prison, according to experts.

However, a representative can't cast someone's vote. Sunita Kejriwal, who stepped into the spotlight following her husband Arvind Kejriwal's arrest, will be campaigning for the AAP, but can't do more on his behalf, like casting a vote.

Section 62 (5) of the Representation of the People Act, 1951 states that no person can vote in any election if they are in lawful custody of the police or confined in a prison.

This is an electoral paradox. A person who is in jail can contest an election but can't cast a vote.