When India got independence in 1947, it was to function as an Independent Democratic Republic Socialist Secular system. The framers of the Indian constitution had dreamt of an India which gives equal treatment to all irrespective of any distinction on any regard whether it be on caste, creed, class, sex, religion or any other basis. Such right to equality included the right to vote. The paper aims to deal with the basic recognized human right, i.e., right to vote for prisoners by critically analyzing the position currently prevailing in India and reforms sought to be achieved. Further, the paper also briefly addresses on the right to vote of the prisoners, as being inalienable and fundamental which is inherent in the democratic roots of this country. Imprisonment must remain as a means to an end and not an end in itself. Punishment should be a means to reform and not to negate citizenship. Imprisonment should be seen as a punishment in itself which curtails the basic right to liberty of a citizen and debarring them from their right to franchise is an extra punishment which is unreasonable and unappreciable.

Democracy means for the people, of the people and by the people. The inherent consideration of a democratic setup is social equality, where people choose their representatives to form government, not to rule them but to administer them. Also, Article 14 of the Indian Constitution upholds this principle of equality. But a prisoner has no right to cast his vote. He has no right to support who he wants his political leader to be. Is this not differentiating? The question to be asked here is- why are the prisoners denied their right to vote? Is this the outcome of society’s malafide intention towards them?

The Constitution under Article 326 guarantees ‘universal adult franchise’ to every citizen of India, being eighteen years or above of age but with some restrictions. The Article reads as:

“The elections of the house of people and of the legislative assembly of every state shall be on the basis of Adult Franchise; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non- residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.” 

Also, section 62 (5) Representation of People Act, 1951 provides for certain restrictions on voting rights of prisoners- “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-section shall apply to a person subjected to preventive detention under any law for the time being in force.”

It is pertinent that the validity of such restrictions be examined. The constitutionality of Section 62(5) of the Representation of People Act has already been challenged before the Supreme Court in Anukul Chandra Pradhan v. Union of India as being violative of the right to equality and the right to life under Articles 14 and 21 of the Constitution. Through a unanimous opinion authored by the late Chief Justice J.S. Verma, the said challenge failed. The Supreme Court dismissed the petition on two grounds: firstly that Article 14 does not affect validity of Section 62(5) of the Representation of People Act, and secondly the Court observed:

“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 prescribing the nature of the rights to elect cannot be made with reference to fundamental rights in the Constitution. The very basis of challenge to the validity of Section 65(5) of the Act is therefore, not available and this petition must fail.”

It is indeed beyond doubt that Article 14 permits the state to make classifications and accord differential treatment according to the same. However, the restriction on the state is that these classifications must be ‘reasonable’ and must have a rational nexus to the objective being sought to be achieved. Also, when Article 326 itself provides for certain disqualifications on the grounds of non- residence, unsoundness of mind, crime or corrupt or illegal practice, any other restriction will be without cause.

The Supreme Court opined that it is reasonable to deny voting rights to convicted prisoners, under trials and those in police custody because it was being done to curb the criminalization of politics. It is difficult to understand how the denial of voting rights is relevant in decriminalization of politics. Such issue is vital for the nation and has to be looked into by ensuring that those with a criminal record do not contest elections but it has very little to do with who vote. If for once we seem to be convinced with the reasons cited by the Apex Court, it is still baffling that the distinction between convicted prisoners and the under custody- under trials was not considered by the court. The Indian criminal justice system commits to the policy of “innocent until proven guilty” but as far as voting rights is concerned, there is a general presumption made that the under custody- under trials are to be guilty. What would fair would be to acknowledge the fact that the under custody- under trials are yet to be found guilty and are still under investigation or interrogation. Those under police custody might be poor and marginalized sections of society, who were not able to manage bail due to lack of required amount or surety. Bringing such under trials within the shade of “criminalization of politics” is a slap on the fundamental principle which forms the very foundation of the Constitution.

The Supreme Court seem to account for practical considerations that additional resources would be required in terms of infrastructure, security and deployment of extra police forces, if  prisoners and those under custody are given the right to vote. It is disappointing that the Honb’le Court has laid its argument on the basis of “resource crunch” while determining a national issue. Constitutional protection of civil liberties cannot be subordinated to practicality.

A similar view can be reiterated in the case of Mahendra Kumar Shastri v. Union of India and Anr, where the Supreme Court observed that the restriction imposed by the Representation of People Act was not unconstitutional and was in public interest. Further, in a decision of the Patna High Court, the Court went to the extent of saying that right to vote is a statutory right. The law gives it, and the law can take it away.

THE PARADOX

In India, prisoner’s voting rights are opposed due to an emotional reflex that the person alleged for committing an offence has violated some or the other right of another bonafide citizen of India or has committed a wrongful act against the State and so his rights should be seized. A person who does not abide by a law and the values of the society deserves this punishment of being barred from having any say in the construction of democracy institution.

It is a common fact that a person, who is not convicted and only under trial, cannot cast his vote from jail or from his detention place but he can very well contest election. Is it not a mockery of law that a person, who cannot cast his vote, can become an M.P., an M.L.A. or a Minister? There are several instances in our country, where people have contested elections, while in jail, and some of them have also won and become Hon’ble M.L.A.s or M.P.s. It has raised serious questions on the viability of the existing electoral system. It can also be said that those who are in lawful or unlawful custody of the police cannot also vote. Police custody for any accused provides immunity to the police for any action but robs the aggrieved from his valuable right to vote.

The denial of voting rights to prisoners is meant to prevent breach of law but persons in jail after conviction or during investigation and trial subsequent to the commission of crimes should be put on different footing, such distinction not being sufficient by itself.

A person, who is under trial, may be found innocent, what shall happen then? Is there any provision for compensation to be paid from stopping him to tender his vote? Whether the under trial, who is deprived from his right to vote be compensated, if it is found that he was innocent and remained in jail without any reasonable and probable cause?

The proceedings of the Preventive Detention laws are taken against those offenders or criminals, who are beyond the reach of ordinary criminal laws or against Mafias or Underworld Dons, who have made their escape good from the Courts on legal technicalities but are form of terror in the Society. The Supreme Court in the case of Sangram Singh v. Union of India, held that right to vote was a statutory right and it is not a common law right. The right to vote or to stand as a candidate for election is not a right but is a creature of statute or special law and must be subject to the limitation imposed by it. The Court kept in view the Representation of the People Act and various other election laws prevalent in this country.

But Section 62 (5) of Representation of People Act, 1951 restricts voting rights of not only convicted but also under trials, widening the term ‘crime’. Here before proving guilt, punishment of being lesser citizen is awarded, damaging their dignity and sense of self-worth, undermining efforts to help them control their behavior. This causes a serious concern for the legislature to reconsider the law, re- frame it and enforce it accordingly.

Giving prisoners the right to vote would aid their rehabilitation and orient them positively toward the society which they will re-enter on their release, which is essential if they are to avoid reoffending. Voting encourages prisoners to take an interest in current affairs. It is understandable that this process is assisted by a policy of encouraging offenders to observe their civil and political obligations.

Voting, like other rights, is not a privilege which government grants to citizens. As spoken of already, right to vote is agreed to be the base of a democratic system and thus to maintain its integrity, it must be placed beyond the reach of politicians or anybody. If it can be modified easily, it loses its substantive value. Adult franchise is the surest way of achieving the goals of justice, liberty, equality, brotherhood and dignity enshrined in the Preamble of the Constitution.  By allowing inmates to exercise their right to vote, they are allowed to influence law and policy making in a constructive manner. An individual votes as a part of the society, as a citizen, to cast his wish, to show that he has a separate identity and if he is not allowed to vote it is like he has no stake in the society. Denial of voting rights is negation of his citizenship. A dead person cannot vote, similarly, disenfranchising a prisoner leads to his ‘civil death’. The concept of restriction on voting right evolved as it could have violated the fundamental rights of others but there is no reasonable explanation one can give for such restriction being imposed on the under trials. Even those who are convicted are first time offenders involved in minor violations of law. Very few are hardened criminals. In a conservative society like ours, a tag of being in prison is itself a big stigma. It should not be further extended to the alienation from society, in this respect. The penal laws have already specified punishments for all types of offences which should not be increased by adding this restriction to it.

About the Author.

Richa Saraf is a 4th year student at the Bangalore Institute of Legal Studies. She currently serves as a Research Associate with the Alexis Centre for Human Rights (ACHR). She can be further contacted at richasaraf.rs@gmail.com