This article has been authored by Nandini Gupta a 4th year student at University Institute of Legal Studies, Panjab University
India, the world’s largest democracy, gives its citizen the right to vote under Article 326 of the Constitution of India. The right of people to cast votes and elect their representatives is known as ‘franchise’ and India recognizes the principle of ‘Adult franchise’, wherein under Article 326 every person who is a citizen of India and a major can cast their vote. Universal Adult Franchise ensures that every person in a democracy is entitled to vote without any discrimination on the basis of sex, caste, race or religion. Right to vote, though not a fundamental right, is fundamental to the foundation of a democratic country and forms its bedrock. This constitutional right is however, restricted by Section 62(5) of the Representation of People Act, 1951 (“RPA”) which states that prisoners, whether under a sentence of imprisonment or transportation or otherwise, or under-trial prisoners in lawful custody of police won’t be allowed to vote in any election. This restriction is not applicable on Detenues i.e., person subjected to preventive detention.
Breakdown of section 62(5) of RPA
According to Section 62(5), convicted and undertrial prisoners are disentitled to vote. The section makes an exception for Detenues, who can cast their vote through postal ballots. Prisoners unable to furnish bail are also not entitled to vote, but prisoners out on bail have the right to do so. Now as per the data by National Crimes Records Bureau for the year 2019, there are currently 4,78,600 prisoners in India, the distribution of which is as follows –
1. Convicts – 1,44,125 – 30.11%
2. Undertrials – 3,30,487 – 69.05%
3. Detenues – 3,334 – 0.67%
Thus, 4,74,612 people are disenfranchised by virtue of this provision. India has been denying the most valuable right fundamental to a democracy i.e., the right to choose its representatives. Right to vote for prisoners is one step towards shaping our criminal justice system into a caring, and reform-oriented institution, one that abides by the universally accepted human rights values.
The prohibition emanates from the ‘Social Contract Theory’ that dictates that those citizens who won’t break laws would enjoy the benefits of the society they reside, in exchange. Therefore, when a citizen breaks law, he voluntarily gives away his benefits. So, a person involved in corrupt and illicit practices should not be entrusted with the responsibility of choosing leaders that would govern the society, and hence should be punished with denial of certain rights.
The proviso to Section 62(5) states that a person doesn’t cease to be an elector due to the prohibition on voting. Section 3 of the RPA makes a distinction between an elector and a voter, the former being qualified to be chosen as a public representative. Section 8 of the RPA puts a bar of 6 years on the people convicted of certain offences enumerated in the section post release, from contesting elections. A plea filed by BJP Leader Ashwini Upadhyay in 2020 urged the Supreme Court to put a lifetime ban on legislators from contesting elections, as opposed to the 6 year period which is violative of Article 14 and basic structure of the Indian Constitution. The SC has held that a prisoner cannot be excluded solely because they were convicted in a criminal case. However, it has issued some guidelines in the cases of Public Interest Foundation v Union of India and Rambabu Singh Thakur v Sunil Arora & Ors. and made it mandatory for political parties to provide a justification publicly for selecting candidates with a criminal background. A 2-judge bench of Justices R F Nariman and S Ravindra Bhat said that a political party will have to provide reasons for giving ticket to a candidate with criminal background than picking someone with a clean image. The bench accepted suggestions of the EC that the parties must be directed to publish credentials, achievements and criminal antecedents of candidates on newspaper, social media platforms and their websites along with the explanation for selecting them.
1997 & 2020 Judgment on Constitutionality
The constitutionality of Section 62(5) was first challenged in the case of Anukul Chandra Prasad v Union of India (1997) wherein the petitioner contended that this section violates Article 14 by drawing distinction between people inside the jail and outside. It is also violative under Article 21 as a prohibition on right to vote denies the right to dignity. The court held that –
1. Right to Vote being a statutory right guaranteed by Section 62(5) can be subjected to limitations.
2. The distinction made between Detenues and Prisoners is classified because the former is confined to avoid any breach of law, but the latter is confined post the breach of law.
3. Allowing people from prisons to vote would require huge deployment of police force which is not possible due to unavailability and lack of infrastructure.
4. Section 62(5) averts criminalization of politics which is subversive of free and fair elections. A person is in the prison due to his own actions and cannot demand equal degree of freedom and liberty as that of non-prisoners.
The Court, however, did not justify how prisoners are a threat to fair and free elections, while people out on bail are not. Secondly, the court held that classification of Detenues and prisoners is reasonable, but it didn’t take into account under-trial prisoners, the guilt of whom is yet to be established[i] and therefore, as per principles of criminal jurisprudence, are innocent until proven guilty. It is difficult to comprehend how an innocent person is a threat to electoral probity.
The latest petition challenging the provision was filed in 2020 – Praveen Kuman Chaudhary & Ors. v Election Commission of India & Ors. The petitioner argued that the proviso to Section 62(5) empowers a convict to contest elections but prohibits from casting a vote. This according to the petitioner is not a reasonable classification and violates Article 14 of the Indian Constitution. The Delhi High Court relied on the above judgement of the Supreme Court and dismissed the petition, holding Section 62(5) a statutory right.
Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights envisages that everyone should be granted the right to take part in elections, without any discrimination of any sort. India is a party to both the treaties.
Prisoners are allowed to vote in Denmark, Finland, Pakistan, Ireland, Spain, Iran, Israel, Sweden, Czech Republic and Switzerland. New Zealand allows undertrials to vote, but not prisoners. Germany bars people convicted of terrorism chargers and Australia bars convicts punished with imprisonment of three years or more. In countries like France, there is no default ban on prisoners to vote in the elections, rather the court may decide to disallow any convict on a case-by-case basis.
When South Africa passed an amendment barring prisoners, serving imprisonment without the option of fine, from casting their votes, the court used the ‘proportionality principle’ to nullify the contention that prisoners having lost their right to liberty, can be fairly denied the right to vote also. The Court in the case of Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others stated that the principle enshrined in Section 36 of the Constitution tries to maintain a balance between the interests of subjects with limited rights and the interests of state. The court held that a blanket ban on the voting rights of prisoners can not be justified, mostly so because the government was unable to establish a link on how disenfranchisement of prisoners would lower the crime rate.
The UK Government while defending the disenfranchisement of prisoners argued the following in the case of Hirst v the UK in European Court of Human Rights:
“Those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country.”
The Court found that there was no evidence that the Parliament weighed the conflicting rights of prisoners and the State, and asked it to bring a law to address the issue. A bill is pending which gives franchise rights to prisoners serving a sentence of one year or less.
Analysis and conclusion
In a democracy, elections pave a way for voicing our needs and problems through our elected representatives. These representatives work for our demands and can be held accountable for not acting on them. The focus of a criminal justice system should not only be punishment and deterrence, but should also incorporate conditions which help in the reintegration of the lawbreaker into the society.[ii] Disenfranchisement of prisoners isolate the prisoners from the society. It is quite evident that no political party in India has included prisons reforms in their election manifesto, which leave the prisoners at the mercy of languishing prisons systems. The working of the Police Departments, the situation and living conditions of jails are also an important issue for the prisoners living there. Giving prisoners the right to vote will give them a chance to raise issues and garner the attention of policymakers. It will create a moral responsibility on the policymakers to hear their demands and be responsive. A plea filed in the Delhi High Court by three law students demanded that distinction be made between people charged with heinous crimes with that of minor offences. Also, those prisoners who have not been convicted shouldn’t be denied of their right to vote. Interestingly, the bar on voting by prisoners is not based on the grievous nature of the crime committed by an individual but on the simple ground that he or she ceases to be an "ordinary resident" of a constituency while serving time in prison. Andhra Pradesh-based writer Varavara Rao felt that under-trial prisoners in the country should at least be given the right to postal ballot, like Detenues. The Supreme Court in various petitions that have been filed through it has been unable to answer how the distinction between convicted prisoners and under trial prisoners, and prisoners under preventive detention is reasonable. If the latter are allowed to cast votes, what is stopping them to give the same option to the former? The prison system in India can only be improved if accountability is placed on the policymakers, and enfranchisement is the way to solve it. The ‘Right to Vote’ guaranteed by the Constitution is a power of choice that is attributed to every citizen, and the power whether to exercise it or not should solely lie in the hands of the said individual.
[i] Jyotishka Guha, ‘Prisoners’ Right to Vote in India’, (Indian Constitutional Law and Philosophy, 9 April 2020) < Guest Post: Prisoners’ Right to Vote in India – Indian Constitutional Law and Philosophy (wordpress.com)> [ii] Baljeet Kaur, ‘Citizen without a vote in a democracy has no existence’ (Engage, 2019) <www.epw.in/engage/article/prisoners-right-vote-citizen-without-vote>