The pertinent provision in the Representation of the People Act was amended in September last year to overcome a court verdict that barred those in lawful custody from running for political offices.
A bench led by Justice H L Dattu issued notices to the Centre and others on a petition, challenging the validity of the amendment in the law, and sought their responses in four weeks.
The petition, filed by advocate M L Sharma, was last year declined to be entertained by the SC, which asked him to first approach a High Court. Subsequently, Sharma moved the Delhi High Court, which nixed his PIL saying barring a person in lawful custody from contesting elections could leave the door open for practice of vendetta politics.
The HC noted that such a prohibition on the ground of de-criminalisation of politics was an instance of a remedy being worse than the disease. It said the Indian criminal justice system was based on the principle of innocent till proven guilty, and hence undertrials could not be put on par with those held guilty, for the purpose of closing their right to contest.
Sharma hence came back to the SC against the dismissal and the court admitted his plea this time. He has contended in his petition that the amendment to the Act, made by Parliament in September last year, was unconstitutional and aimed to benefit only the political parties that tend to flex muscle power through leaders with criminal antecedents.
Challenging the amendment, Sharma also pleaded for a stay on the operation of the amending provision. He said that not staying the operation of the law would cause several criminals contest election and win.
The amendment redefined the term elector in the Act, saying a person would not cease to be one if he cannot vote because of his being in lawful custody. In its July 2013 verdict, the SC held that a person who cannot vote because he is jailed is not an elector under the Act, and therefore, he is disqualified from contesting elections.
The Centre had filed a review against the July 10 verdict too but it was rendered infructuous since there was an amendment in the Act. However, while disposing of the review plea, the SC had clearly said the questions regarding constitutional validity of the amendment can be examined separately.