India is the largest democracy which provides every individual Right to Vote. The Article 326 of Indian Constitution mandates Adult Suffrage, which means that every Indian citizen above 18 years of age has Right to Vote. In every election, millions of people exercise their franchise and select their representative.
But there is a significant exception to this rule, that is Section 62(5) of the Representation of the People’s Act, 1951 (RPA). This Section prohibits people who are confined in a prison or under lawful custody of the police from voting. Another point to be noted is that India is among the very few countries who do not give voting rights to the people in jail, irrespective of their duration of imprisonment.
Prisoners in India
There are various disagreements made in support of extending voting rights to the prisoners. As there is no distinction made in this regard between those who have been charged with the heinous crimes or other petty crimes, which means people who have committed minor crimes are also discharged from the Right to vote. People under conviction, trial, and custody are denied from their voting right.
On the flip side, it is usually believed that India has world’s smallest prisoner populations. According to the anonymous sources, 33 out of every 1,00,000 people are behind the bar in India. Moreover, the criminal justice system is broken to a huge extent, and people usually do not get speedy justice like many other countries. Prisoners suffer from multiple problems such as poor maintenance of infrastructure, legal aid, police custody etc.
What does Law Say?
Section 62 of Representation of People’s Act, 1951 is about ‘Right to Vote’ wherein clause 5 provides a person who is confined under prison does not have voting rights. The prison here means, sentence, transportation or any other kind of lawful custody. However, the prison does not mean preventive detention.
On the other hand, the Reference Handbook on the General Elections, released by Election Commission of India in Chapter 43 further excludes under-trial prisoners from voting, even if their names are on electoral rolls. Nevertheless, no vote has been caste by any under-trial prisoner yet. According to the Section 21 of the Universal Declaration of Human Rights (UDHR) by the United Nations, every adult has universal suffrage, with no bar to his/her age, gender or status of incarceration.
The issue has been challenged before the Apex Court often. In the case of Anukul Chandra Pradhan v. Union of India [1997 6 SCC 1], Section 62(5) was challenged and the matter was dismissed as the grounds to challenge were considered invalid. In the year 2014, Patna High Court decision was challenged by Chief Election Commissioner and others in Supreme Court where after it was held by the Apex Court that ‘We do not find any infirmity in the High Court decision.’ At that time the decision was criticized by many politicians and citizens.
Recently, three law students from Uttar Pradesh filed a petition in the Apex Court for the invocation of ‘Prisoner’s Right to Vote.’ They challenged the Constitutional Validity of Section 62(5) of Representation of People’s Act, 1951. It was contested that Article 326 of Indian Constitution provides that Right to vote can only be decided through suffrage and nothing else, and due to this reason Section 62(5) of the aforementioned Act stands unconstitutional.
Interpretation of Section 62(5)
In all the aforementioned case laws, the interpretation of Section 62(5) was alike. The Apex Court took the view that it was justified to deny the voting rights of the convicted person. The intention here of the legislation is to curb the criminalization of politics. Moreover, the Court considered the practical considerations and ruled that the additional resources are needed in terms of infrastructure, security and deployment of extra police forces is valid. Another opinion of the bench was that a prisoner is in prison because of his own illegal conduct and is therefore deprived of his liberty during the period of imprisonment. Thus he cannot claim freedom like others. It was also held by the Chief Court that, the Right to Vote’ is a Statutory Right and not a Constitutional Right. Law can provide the Statutory Right and Law has no hesitation in taking it away. The Court contemplated the voting right is privilege to the citizens which can be taken aback.
The countries like Europe, Switzerland, Finland, Norway, Denmark and Ireland, Spain allow prisoners to vote. Furthermore, other countries are progressing towards enfranchising prisoners. Some countries like Romania, Iceland, Netherlands, Luxembourg has adopted a mid path – voting here is allowed to certain permits and conditions. The prisoners imprisoned for less than five years can vote in Australia whereas in Bulgaria people sentenced for less than ten years can vote. The central tenet ‘Innocent until proven guilty’ is followed in some countries. In this context, prisoner’s can vote till the time they are proved guilty beyond reasonable doubt. This concept is working as a step towards rehabilitative justice easier integration of these people into the mainstream after serving time. It is also considered that being able to vote is a most crucial identity as an equal citizen.
The clause 5 of Section 62 of Representation of People’s Act, 1951, is in contradiction of the basic principle of law ‘Innocent until proven guilty.’ As a citizen who is in custody or in any kind of imprisonment, is restricted to vote no matter he/she is yet to be proved guilty or later after trail proves to be innocent.
However, other surprising fact is that, people who are imprisoned are qualified to contest elections but cannot vote. The law on prisoner’s right to vote is completely vague and alike other countries India also needs a proper legislation for the Prisoner’s Right to Vote. Thus, an adequate law is required to fulfil all the shortcomings of present law.
Prisoners do not have voting rights, EC tells HC; NEW DELHI, AUGUST 06, 2019
Indian Elections: Should prisoners get voting rights?; 03 May 2019; Avantika Bhuyan
Prisoner votes by European country; 22 November 2012 ; BBC
The Democratic debate over letting people in prison vote, explained; By German Lopez; Vox
Image Credits: www.ubaltciclfellows.wordpress.com