By Guest Writer Avanti Deshpande

Free and fair elections underpinned by the universal adult franchise are undoubtedly the cornerstone of a democratic state in today’s standards. Yet, while most democratic countries acknowledge the importance of voting rights, voter suppression and voter disenfranchisement are not new problems and have long been plaguing democracies.

Indian law places a blanket ban on voting for all prisoners; i.e., not only convicts but under-trial prisoners whose innocence or guilt is yet to be proven conclusively in a court of law. With no exception, reasoning, or rationale being provided under law for denying prisoners the right to vote, this piece will attempt to critically engage with the issue of the disqualification of prisoners from voting in elections and argue that it is fundamentally unconstitutional and violative of the basic tenets of a democratic state.

Overview of the Present Legal Framework
The issue of the disenfranchisement of prisoners in India stems from Section 62(5) of the Representation of the People Act, 1951 (“RPA”), which provides that 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, with the exception of persons being held in preventive detention.

At the outset, it is important to note that the right to vote is not a fundamental right but rather a constitutional right (under Article 326 of the Constitution) subsequently shaped by statute (the RPA) and recognized by the Supreme Court of India in People’s Union of Civil Liberties v. Union of India & Anr. (2003). The status of the right to vote being a constitutional right and not merely a statutory one was reaffirmed by the apex court in 2015 in Rajbala & Ors. v. State of Haryana & Ors.

The constitutional validity of section 62(5) was challenged in Anukul Chandra Pradhan v. Union of India before the Supreme Court in 1997, on the grounds that it was violative of Article 14 (equality before law) and Article 21 (the right to life and liberty) of the Indian Constitution. The apex court upheld the constitutionality of the provision, stating that a person who was in prison as a result of his own conduct and was consequently deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech, and expression with another person who is not in prison. The classification of persons in and out of prison separately, however, is reasonable.

More recently, in June 2022, the plea of two members of the Maharashtra Legislative Assembly from voting in the state’s Legislative Council elections while they were in judicial custody on money laundering charges was rejected, first by the Bombay High Court, followed by the Supreme Court. The High Court went on to opine that permitting prisoners to vote does not strengthen democracy. A public interest litigation challenging the validity of section 62(5) is as yet pending before the apex court.

International Law and Views from Other Jurisdictions
Further, several international legal instruments such as the Universal Declaration of Human Rights (UDHR) under Article 21 provides that everyone has the right to take part in the government of their country, directly or through freely chosen representatives. Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which India ratified in 1979, provides for the right of citizens to take part in the conduct of public affairs, directly or through freely chosen representatives. Notably, the Basic Principles for the Treatment of Prisoners that was adopted by the UN General Assembly in 1990 states that,

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.”

Coming to the position on this issue in other jurisdictions, the United Kingdom also has a similar blanket restriction on prisoners from voting as provided under Section 3 of the Representation of the People Act, 1983. This was challenged in 2005 in Hirst v. United Kingdom (No. 2) before the European Court of Human Rights (“ECHR”) where the ECHR held UK’s blanket ban on disenfranchisement of persons serving custodial sentences to be violative of Article 3 of Protocol No. 1 of the European Convention on Human Rights.

The position in Canada, however, is quite distinct from the one in India and the UK. The Supreme Court of Canada in 2002 in Sauvé v. Canada (Chief Electoral Officer) held that the provision under the Canada Elections Act which disqualified persons imprisoned in correctional institutions, serving sentences of two or more years from voting in federal  elections, infringed upon section 15(1) of the Canadian Charter of Rights and Freedoms which provides for equality before and under law and equal protection and benefit of law. Significantly, the court went on to observe that such disenfranchisement of prisoners’ “removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration”.

Arguments Against Disenfranchisement of Prisoners
Two major reasons provided by courts against removing the restrictions on prisoners from voting is first, the logistical considerations such as the vast police presence that would be required for voting to be carried out in prisons and the lack of resources for such an exercise; and second, that such a bar prevents the ‘criminalization of politics.’ Mere logistical or administrative difficulties cannot be reason enough to deprive an individual, even an incarcerated one of as important a right as the right to vote. For rights to be restricted, the reason needs to be a ground enumerated in the Constitution or it needs to pass the tests of reasonable classification, intelligible differentia, and proportionality, and cannot be barred on arbitrary grounds.

Further, the second reason is utterly devoid of any reasoning as it is common knowledge that a large number of Indian law-makers have criminal records. Additionally, a criminal conviction does not disqualify an individual from contesting elections (apart from the disqualifications enumerated under section 8 of the RPA), and the Supreme Court has expressed its reluctance in imposing a life-long ban against contesting elections on convicted persons. No rationale has been provided by the court as to why convicted criminals may be permitted to contest elections and hold office, but undertrial prisoners’ whose guilt is yet to be determined may not be allowed to vote. Further, placing a blanket ban on voting of all prisoners, without taking into account the nature of the offence committed by them which would certainly vary in severity and degree signals arbitrary treatment with no reasonable classification of any kind.

This issue has come under scrutiny yet again due to a recent, public interest litigation (PIL) filed challenging the constitutional validity of section 62(5) of the RPA on the grounds of violating Article 14 of the Constitution. While the matter is as yet, pending before the Supreme Court, there is hope that the court uses the opportunity to change the position of the law, in the least with regards to under-trial prisoners.

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