Author: Tusharika Vig
V Year | Christ Law School, Bengaluru

Introduction:

The concept of voting rights is intrinsic to a person’s inherent civil and political rights in society. The right to vote is extended without discrimination on the basis of sex, gender, place of birth, economic status, etc. The right is internationally accepted and also universally applied to all citizens of the State.[1] However, prisoners are one section of the population who are excluded from public affairs.

The UDHR and ICCPR do not make an exception to the population of prisoners while stipulating voting rights. Yet, states all over the world have created these exceptions in the exercise of their sovereignty.

International law on Voting Rights:

The International Bill of Human Rights lays down the universal standard for human rights. Article 21 of the Universal Declaration of Human Rights provides that everyone has the inherent and inalienable right to participate in the political affairs of their State by choosing their representatives.[2] Article 25 of the International Covenant on Civil and Political Rights also deals with an individual’s right to vote. It provides that every citizen shall have the opportunity to (a) take part in public affairs of their State directly or indirectly (b) to vote through universal and equal suffrage (c) to have equal access to public service.[3]

Voting Rights vis-à-vis the RPA, 1950 and 1951:

The Representation of the People Act is the legislation that regulates the process of elections in India. It determines the qualifications and disqualifications to contest in elections. The 1951 Act also briefly discusses who shall be eligible to be registered as voters.

Section 16 of the RPA, 1950 provides for disqualifications for registration in an electoral roll. A person may be disqualified on grounds of non-citizenship, unsoundness of mind or any other corrupt or illegal activities related to the process of elections.[4] Chapter IV of the statute contains provisions dealing with disqualification for voting. Section 11A provides a bar on persons convicted of bribery, undue influence or personation during elections from being qualified to vote at any election till the expiry of 6 years.[5]

While corrupt and illegal practices in connection with the election proceedings seem to be a reasonable punishment to secure the sanctity of democracy, absolutely denying the right to vote to an entire section of population is an issue which needs further analysis. Sub-section (5) of section 62 of the 1951 Act specifically bars persons confined in prisons, those serving a sentence or who are under the lawful custody of police from the right to vote. However, this prohibition does not apply to those persons detained under preventive detention.[6] This provision shows how India’s legal system treats prisoners, detainees, persons under police custody, etc as second-grade citizens.

Constitutional validity of Section 62(5) of the RPA, 1951:

Ankul Chandra Pradhan v. Union of India was the first case where the Apex Court considered the constitutional validity of Section 62(5) of RPA, 1951. The Court upheld the constitutionality of the provision on the grounds that the right to vote was not a fundamental right, but merely a statutory right which the legislature could restrict. The Court did not consider Section 62 as a contravention to Article 14 and 21 of the Indian Constitution. Moreover, the Court cited infrastructural and institutional reasons to deny the right to vote to prisoners. This is irrational reasoning that blatantly violates democratic and human right principles. [7] Since this judgement, there have been several criticisms and debates on the issue of voting rights of prisoners. The Supreme Court held that a voting process would be an impossible idea because of security and management concerns. It fails to take into consideration the social contract existing between the State and the public and the duties of the State towards its citizens. [8]

In Praveen Kumar Chaudhary & Ors. v. Election Commissioner of India and Ors., the Delhi High Court reaffirmed the constitutionality of Section 62(5) and upheld the rationale provided in the Supreme Court decision from 1997. [9] This 2020 decision reflects the attitude of Indian judiciary and the downward trend of voting rights in prisons.

No voting rights – a threat to democracy:

Right to vote is an instrument through which citizens can exercise their opinion and influence political affairs of the country. Voting is a mechanism through which the public can make a change towards achieving a welfare state. [10] Although right to vote is not a fundamental right under Part III of the Constitution, it still lies at the heart of democracy. Voting rights are not just related to a person’s participation in politics of a state. It is intrinsic to their status and value in society and confers a sense of belonging to citizens. [11] In the landmark case of People’s Union for Civil Liberties v. Union of India (2003), the Supreme Court held that the right to vote though not expressly included as fundamental right, flows directly from Article 19 (1) (a) which provides for the freedom of speech and expression. [12]

The exclusion or prohibition of the right to vote to prisoners creates an unreasonable classification, thereby violating Article 14. [13] While it is true that imprisonment falls under ‘reasonable restriction’ under fundamental rights, with the evolving nature of criminal justice and expansion of prisoners’ rights, it is worth examining and classifying which rights must be absolutely taken away and which are the ones enjoyed by the prisoners.

Although there is no express restriction on freedom of speech and expression as a result of imprisonment, there are moral grounds on which persons in prisons are excluded from voting privileges. Firstly, such moral grounds rest on the presumption that all persons inside jails are proven guilty of serious offences. Majority of population inside jails are awaiting their trials and thus, are innocent until proven guilty. [14] Secondly, Section 62(5) of RPA, 1951 generalises and puts all persons inside prison under the same umbrella by denying voting rights to every prisoner, detainee or person in police custody irrespective of the nature of charges, type of prisoner, etc. [15]

Need for Institutional visibility:

Although, the realm of prisoner’s rights is evolving and getting gradually recognized, there is less visibility from the State’s side on the issue. This ignorance emerges from the fact that persons without a right to vote exercise no power and thus, are invisible in society. Political parties in power exercise no accountability towards them because they do not determine their fate in the next election.

The way forward:

The management and maintenance of prisons and prisoners fall under Entry 4 of List II of the Seventh Schedule to the Constitution of India. Thus, prison administration is an area for state governments to practically impact the situation in prisons in reality. [16]

At this juncture, one possible solution would be to allow a section of prisoners (particularly undertrials, awaiting trial prisoners, detainees, etc.) to participate in elections to the State legislatures. Such classification would not be unreasonable or violative of Article 14 as prisoners are classified under The Prisons Act, 1894 as well.

Moreover, to implement this change in policy, it is pertinent for prisoners to be aware of their legal rights. It is also essential to ensure that all prison cells in the country have uniform and functioning surveillance machinery. This will prevent abuse of the voting process and also secure the human rights of prisoners.

Footnotes:

[1]Ornit Shani, How Indians got the vote, INDIAN EXPRESS (Sep.26, 2022, 9:45 PM), https://indianexpress.com/article/opinion/columns/how-indians-got-the-vote-5064340/

[2] Universal Declaration of Human Rights, (10th December 1948), Art 21, United Nations General Assembly

[3] International Covenant on Civil and Political Rights, (23^rd March 1976), Art 25, United Nations General Assembly, available at https://www.refworld.org/docid/3ae6b3aa0.html

[4] The Representation of the People Act, 1950, No. 43, Acts of Parliament, 1950.

[5] The RoP Act, 1951, § 11A, No. 43, Acts of Parliament, 1950.

[6] The Representation of the People Act, 1951, § 62(5), No. 43, Acts of Parliament, 1950.

[7] AIR 1997 SC 2814

[8] https://www.livelaw.in/columns/constitution-of-india-prisoners-section-625-representation-of-people-act-right-to-vote-article-191-article14-204959

[9] W.P.(C) 2336/2019

[10] https://articles.manupatra.com/article-details/Right-to-vote-A-legal-right

[11] https://criminallawstudiesnluj.wordpress.com/2020/03/28/a-critique-of-section-62-5-of-representation-of-the-people-act-1951/

[12] (2003) 2 S.C.R. 1136

[13] INDIA CONST. art 14

[14] Supra note 11

[15] The Representation of the People Act, 1951, § 62(5), No. 43, Acts of Parliament, 1950.

[16] https://www.mha.gov.in/Division_of_MHA/Women_Safety_Division/prison-reforms

Editor : Ananya Manjunath