Ravi S.Dhavan, J.

1. Indias claim that it is the worlds largest democracy is not a statement which can be made with pride for all times to come. Unless some factors are checked, and immediately, this will become a hollow claim, because the contents of democracy are beginning to be eroded.

2. This is election time, all over the nation. Reporting in both print and broadcast media reveal; how this democracy is functioning. The election in Bihar has come in for much comment. If there is any serious critic who may say that the atmosphere is principled and ideal and all the voters came to vote, then these proceedings must be dropped. But is this the case?

3. The pulse of the people in a Democracy is the free press, and this election has been given a gruesome face by the Press. This Court has noted reports from the period, when the elections were announced. From then until today there has been brutality, violence and death. Death by violence seems a mundane exercise. The tragedy is only felt by the family who has lost a member. The obligation of this state of prevent this violence is conspicuous by its absence. But the newspapers, and particularly the Hindi Press, show the face of Bihar, and ordinary people have to interface with this face. Ordinary citizens must face this atmosphere to exercise their democratic right to vote.

4. The Press reports that the atmosphere in Bihar has been criminalized, the Press emphasizes that this has been done by politicians. This entire issue before the Court is about the criminal in politics. The Law and the Constitution do not encourage a politician with criminal antecedents, though to a certain extent they may suffer the situation. The Law specifically provides for keeping criminals away from the Representation of People, in the forums of Legislature and Parliament. If anyone has any suggestion that there is a pface for all in the Legislature, then the Court had thrown the debate open, but could not receive any serious argument that Parliament is the preserve of politicians being chased with allegations of criminality. Of course, everyone is innocent until proved guilty. This Court is not trying a trial nor deciding any particular election dispute, this is for other forums. This case is about who may have the right to stand for election, to file a nomination and run for office, and who may not.

5. These two cases concern (a) criminals in politics, and the question; (b) if the candidate is imprisoned and has no vote, may he stand for election?

6. May a person who is behind bars, run for office? In the Representation of the People Act, 1951 sec. 62(5) a person lodged in prison is barred from casting his vote. It reads :-

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"(5) 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; provided that nothing in this Sub-sec. shall apply to a person subjected to preventive detention under any law for the time being in force."

7. This section of the Act has been challenged as unconstitutional in the Supreme Court, and upheld repeatedly in Mahendra Kumar Shastri V/s. Union of India and Anr., the Supreme Court observe :-

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"The disability which is imposed u/s. 62(5) of the Representation of the People Act is equally applicable to all persons similarly situate mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing peoples representatives and there is no arbitrariness of discrimination involved....."

In Anukul Chandra Pradhan V/s. Union of India and Anr., the Supreme Court said :--

"In view of the settled law on the point, it must be held that the right to vote is subject to the limitations imposed by the statute which can be exercised only in the manner provided by the statute; and that the challenge to any provision in