New Delhi, May 6
The Supreme Court today stayed the Patna High Court order directing the Election Commission to “consider” countermanding of elections in those constituencies from where undertrial prisoners are contesting from jails, saying that court’s interference in electoral process at this stage is not practical.

Admitting the EC's special leave petition (SLP), a Bench of Chief Justice, Mr S. Rajendra Babu, Mr Justice G. P. Mathur and Mr Justice S. H. Kapadia in its interim order said: “When election has reached the final phase, interference by us is not practical at this stage and the (HC) order is stayed.”

The court also issued notices to NGO “Jan Chaukidar” and another petitioner, on whose public interest litigation (PIL), the High Court had passed the order on April 30.

When senior advocate Amrendra Sharan, appearing for the original petitioner before the Supreme Court, contended that the constitutional body like the poll panel was not expected to take such a stand on an important issue like the criminalisation of politics, the Court said it would examine the matter.

“Whether a candidate lodged in jail is disqualified or not and whether his nomination has been widely accepted by the EC or not, these are the questions to be decided,” the court observed.

EC counsel K. K. Venugopal, who made a strong plea for stay of the High Court order, said the law had been well settled by the apex court in earlier judgments that once the electoral process was set in motion by the President, the courts were restrained from interfering in it.

Mr Venugopal said despite the suspension of undertrial prisoners’ right to franchise, they were not debarred from contesting elections under the Representation of People’s Act. “Only those who have been convicted by the court of law are debarred,” he said, adding that it was “impossible” to implement the High Court directives.

Mr Sharan, however, said the Constitution had laid down the qualification for contesting the election, which says that the contestant’s name should be in the voter list. “If a person is debarred from the voting, how can he be allowed to contest,” he argued.

He contended that countermanding of elections in a few constituencies from where people with criminal background were contesting from jails, would not affect the Constitution.

The Patna High Court had not issued a new mandamus to the EC but had only interpreted the law laid down by the Supreme Court in its earlier judgement on the issue of criminalisation of politics, he said.

The EC in its SLP has raised three important questions of law to be decided by the apex court:—
1) Whether the courts have jurisdiction to issue a direction of this nature amidst the ongoing poll process under Article 329 (b) of the Constitution?

2) Was such a direction sustainable under the existing laws and would not it entail disruption of the election process before the declaration of the results?