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ISSUE IV

ELECTION COMMISSION WAS NOT JUSTIFIED IN OMIITING THE NAME OF

MR CHONGA FROM THE LIST OF THE CANDIDATES.

The issue to be determined here is whether a person without the right to vote is disqualified

from contesting election under the The Representation of People Act, 1951 [RPA

hereinafter]

[A] The respondent was legally qualified to contest elections

[i]Elector and voter are distinct words and cannot be used interchangeably.

The intention of the legislature is primarily to be gathered from the language used

1

and it is

contrary to read words into an Act unless it is absolutely necessary to do so.2The Supreme

Court , with specific reference to RPA stated that the provisions of The RPA needs to be

construed strictly3. Section 62(5) of the RPA makes reference only to a voter. The word

elector finds mention in several other provisions of the RPA. This shows that the intent of

the legislature was not to use them as synonyms. Therefore, to equate the terms voter and

elector would would be giving contrary interpretation of intention of the legislature. The

respondent humbly submits that courts are not permitted to do so.4

1J.P Bansalv. State of Rajasthan, 2003 AIR SCW 1848,2Renula Bose (Smt.) v.Rai Manmathnath Bose, AIR 1945 PC 1083Madan Mohan v.Kalavakunta, AIR 1984 SC 8714Sakshi v. Union of India, (2004) 5 SCC 518.

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[ii] Although respondent is not a voter, but he is still an elector

Mr Chonga was remanded to do police custody, and by application of S.62(5), he may have

lost his right to vote. However, his right to be elector is still intact. As proven above, voter

and elector are two distinct words are are not permitted to be used interchangeably.

[iii] The respondent fulfils all the qualifications to be a candidate under S.4 of RPA, 1951

S.4 of RPA lists out the the qualifying criterion for a person to be eligible to contest elections.

The respondent fulfills all the criteria including being an elector under S.4(d) and was thus

legally qualified to be a candidate. The respondent submits that the appellant has undly and

unlawfully deprived the respondent of his right to contest election by omitting his name.

[B]. A candidate could have only be disqualified under S.8 of RPA

The aim of keeping criminals away from the politics may have prompted the appellant for

omitting the respondents name. It is submitted that such an extreme step can be taken in

circumstances where the candidate has been convicted of a crime.

InK. Prabhakaran v.P Jayarajan5, the Apex Court has held that the object of S.8 (3) is to

keep the election process free and fair by keeping criminals away. This is the based on the

most basic tenet of the criminal jurisprudence that every men is innocent, until proven

guilty. The appellant has committed a breach of this principle by assuming that a person is

sent to police custody is a criminal .This fundamentally flawed assumptions cannot be

allowed to sustained unless it is proven beyond a reasonable doubt that the accused is guilty

5 (2005) 1 SCC 754