by Shivam Mishra and Ayanti Mishra 29 July 2020
India, a democratic state pursues a reformative theory of punishment which ensures the basic rights of its prisoners, but regrettably, it stands mockingly with the non-existential prisoner’s right to vote. Section 62(5) of the Representation of the people act, 1951(hereinafter, ‘the Act’) prevents every prisoner to vote, be charged with imprisonment for life, or is under trial. This act has perniciously degraded the human rights of the prisoners for a substantial period in India.
Recently, Delhi High Court in Praveen Chaudhary v. Election Commissioner upheld the constitutional validity of section 62(5) of the Act. The Hon’ble court said that the matter has already been settled by the apex court in Ankur Pradhan v. Union of India and the court reiterated the same rationale as upheld by the apex court. This again highlighted the Indian judiciary’s firm stand over prisoners’ right to vote. The authors in this piece criticize the court’s decision and will argue that such prevention on the right to vote is a gross violation of prisoners’ fundamental rights. The authors emphasize that the court needs to take lessons from the other countries’ jurisdictions which have consistently recognized this vital right and gave them its due importance. Considering this, the authors have taken their reliance (to a certain extent) on some foreign cases as there has been extensive litigation over a long period of time on the prisoners’ right to vote in their respective jurisdictions.
- NEED FOR RECOGNITION-
The petitioner in the Delhi High Court argued that restriction on right to vote is the violation of prisoners’ fundamental rights, primarily Article 14, 19, and 21 of the Constitution. The court in its response said that this provision aims to prevent the criminalization of election and promote the concept of the fair election and for this; a reasonable classification has been provided between the person in the jail and person out of jail through section 62(5). Therefore, is not the violation of Article 14. The court stated-
“Criminalization of politics is the bane of society and the negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and orders which are the essence of democracy must, therefore, be so viewed.” (Para 5)
While free and fair elections are the basic part of the constitution as stated by the top court in Indira Gandhi v. Raj Narain. (Para 22) It is noteworthy that the inclusion of the prisoner’s right to vote election would uphold its integrity more as it will lead to more fair results in an election. The apex court has itself opined that “the lesser participation of voters in election explains the rejection of commitment to democracy while higher participation of voters denotes the healthy democracy of a nation”. (Para 50)
In the 2019 Lok Sabha elections, on many seats, the winning margin was so close which could have been different if prisoners had such rights. In India, approximately four lakhs people are behind bars, whereas 68% are under trials. The major chunk of the population could have contributed to the efficient nation-building had they were given their due rights. The denial of their voting rights to this population is not only against the free and fair election doctrine but also against the ethics of a democratic nation, as the Apex court in PUCL v. UOI has stated and emphasized that “free and fair elections would alone guarantee the growth of a healthy democracy in the country and the ‘Fair’ denotes the equal opportunity to all people.” (Para 51)
Furthermore, In India, it has been reported that one-third of the national legislatures are charged with criminal sanctions. However, they are allowed to contest the election on the ground that they haven’t been convicted by the court yet (as per section 7 to section 11 of the Act). While criminally charged persons are allowed to contest the elections, the denial of prisoners to participate in voting cannot be rationally justified only by saying that it will criminalize the election procedure and even when they haven’t been convicted by the court especially in light of ‘innocent until proven guilty’ (Para 40) doctrine that prevails in the Indian justice system.
Moreover, in the author’s view, such restriction also does not pass the reasonable classification test. Article 14 states as-
“Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.
While article 14 forbids class legislation, it allows reasonable classification. (Para 15) However, such classification must have a valid object to achieve. Besides, there should also be a reasonable nexus between the classification and the object that the legislation sought to achieve. (Para 28) In the present case, the court held that the classification between an accused who is behind the bars and the person out of jail is valid since it seeks to achieve the object of decriminalization of election. However, the authors argue that such a restriction doesn’t pass this test primarily on two grounds. Firstly, the object this classification is sought to achieve is not valid in itself as this classification is resulting in violation of fundamental rights (the authors claim it in the latter part of the piece). Secondly, there exists no reasonable nexus because if a person is out on the bail he can vote while if he has been denied bail by the court he cannot cast his vote. While the court language emphasized the need for the object of decriminalization of election, it seeks to differentiate between a criminal and non- criminal person. However, here the classification differentiates between a person behind the bars and a person who is out of jail. Therefore, an innocent person behind the bars would be deprived of such rights while a criminally charged person though out on bail could cast his vote. It is ostensible discrimination and the classification seems to be divergent from the object as stated by the court. Considering, people’s legal literacy such restriction makes even more hazardous effects. For example, under section 436 of CrPc, if a person has undergone half of the maximum punishment if convicted, then he would be released. However, in 2016 when 1557 were eligible for this only 929 were released. The sad state of affairs existed because they weren’t aware of such legal rights otherwise they would have claimed and this ultimately deprived them of their right to vote too.
Further, the court held that since the right to vote is statuary right and limitations can be prescribed on it by the statute. It said that-
“Right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote is subject to limitations imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”(Para 12)
While the court has frequently changed the character of the right to vote as in few cases such as in PUCL v. Union of India the court has declared it as a constitution right, whereas a statutory right in others. However, even considering it as a statutory right; it is noteworthy that the Representation of People’s Act, 1951 has been laid down on the touchstone of Article 326 of the Constitution, circumscribing it in its horizons. Article 326 states the disqualification from the right to vote on the ground of criminal, corrupt, or illegal practice. In light of doctrine ‘innocent until proven guilty’ such denial cannot be justified when the person is not being convicted by the court and is behind the bars merely on the ground of being accused in the same.
Furthermore, the court stated that since the person is in prison due to his own conduct therefore, he can’t claim equal rights of a person who is not in prison. (Para 6) The court also stated that there is an unavailability of ample resources and police to organize elections for the prisoners. Therefore, we can’t allow such rights to them. (Para 8)
It is quite unfortunate that the judiciary while giving such a rationale ignored the basic purpose that lies behind the punishments. The punishment under the Indian law system aims to rehabilitate and reintegrate the offender into the society again as specified in Model Prison Manuel 2016 (Page 13) released by the government. Moreover, the United Nations Standard Minimum Rules for Treatment of Prisoners, also known as Nelson Mandela Rules 1955 construes the purpose of imprisonment and treatment needed by the prisoners described under Article 57, 58, and Article 60, 61 respectively. These articles clearly illustrate that the purpose of imprisonment is to rehabilitate and reintegrate the prisoners into society by respecting their integrity and dignity. However, deprivation of such rights to them essentially blurs this possibility as it takes away their sense of existence in this democratic country. Since voting is an instrument to express dissent and dissatisfaction, the absence of such right would undeniably lead to a situation in which a person is unable to express his demand and needs resulting in his/her blatant ignorance. This can also be deducted from the government agenda as the governments have never stated prisoners’ welfare in their manifesto and policies. Whereas, prisoners are regularly subjected to inhumane treatment, scarcity of basic resources, and torture by the prison authorities. The main reason can be deduced from the fact that there is no political benefit from these classes to them. Further, as Dr. B.R.Ambedkar stated that voting is an essence to citizenship, in absence of such right they often realize themselves as secondary citizens since they are required to obey all duties like other citizens but don’t possess equal rights as of other citizens. This consequently results in the seclusion of the prisoners rather than re-integration. Furthermore, In the case of Charles Sobraj v Superintendent of Tihar, Delhi (Para 5) the apex court said that a prisoner will be deprived of only those rights which are incidental to confinement. However, Deprivation of the right to vote is not an incident of confinement rather it is an independent punishment as the South African Judge justice Arbour JA stated that: “denial of the right to vote is a punishment for imprisonment rather than for the commission of an offense”. (Page 101) Thus, a separate punishment itself and consequently is against the spirit of Article 20(2) of the constitution. Though, such a statement holds no binding value within the court. However, such voices should not be ignored by the judiciary. As judiciary borrowing will ensure the broader vision of justice more appropriately, as once former Chief Justice K.G.Balakrishna quoted, “domestic courts are called upon to engage with foreign precedents in fields such as ‘Conflict of Laws.” Therefore, a prisoner even though it is behind the bar due to his conduct should not be restrained from such rights since it will be a gross violation of the fundamental principle.
Moreover, Section 62(5) also violates Article 21 which enforces that right to life, is not merely for survival instance but with dignity. Needless to say, Prisoners also have the right to live with human dignity as observed by the Supreme Court in the case of Sunil Batra v Delhi Administration. The South African court recently in the case of August v Electoral Commissioner (Para 17) observed that the right to vote is a badge of dignity and citizenship. Though, the case has only persuasive value in Indian court nevertheless the fact cannot be consciously ignored that it is the very dignity of a human that doesn’t change with the transcends of countries’ boundaries. Therefore, it is not wrong to say that deprivation of such right which does not provide the due dignity violates article 21 of the Constitution.
Furthermore, The Apex court in Jyoti Basu v. Debi Ghosal held that right to vote is a pedestal of freedom of expression, it stated that casting the vote in favor of one candidate constitutes an expression of opinion and preference of an individual and comes within the ambit of Article 19(1)(a). However, the prisoners in light of section 62(5) are prevented from expressing their preference and opinion which results in dilution of their fundamental right as well. It is also noteworthy that the court in the present case does not even discuss the right of prisoners in the touchstone of Article 19(1)(a). Though, the petitioner raised this very pertinent question for the same perusal of the court. Interestingly, even in Ankur Pradhan v. Union of India case the validity of the concern provision was not checked in view of article 19(1)(a).
Besides, such a restriction on prisoners’ rights also raises the possibility of vote suppression by powerful leaders. The South African court in case of Home Minister v. Nicro (Para 47) made this alarming statement against such restriction. This possibility becomes more probable in the Indian context on various grounds. First, because in India, politicians hold a powerful position and this becomes even worst with the coupled fact that many politicians are engaging actively in criminal activities. Secondly, even an under trial prison is not entitled to vote which makes things even swifter for the leaders particularly against the vulnerable sections of the society. Even today, 55% of the undertrials prisoners belong to this vulnerable section. Therefore, it is not only today for which their rights and voices have been suppressed but if continued will rise to happen more in the future in a well-thought manner, and this just a mere example of the same.
In the end, it is also pertinent that in the case of Sauvé v Canada, the Canadian government raised the same argument as given by the Court in the aforementioned case. Ironically, here the court rejected these arguments by stating them “vague, symbolic objective and repugnant to fundamental rights” and stated that disenfranchisement of prisoners cannot be allowed since voting is fundamental to democracy.
At the time of independence, only 15% of the Indians had the right to vote. It was the persistent endeavor of our constitutional assembly members which provided the right to vote to every citizen. However, leaving behind a whole section of society from this right is contrary to the spirit of our founding members. Also, as the above discussion suggested such restriction is also not in consonance with fundamental rights. Though, the Indian judiciary has firmly denied such arguments, the authors with the above discussion intended to emphasize that it is right time for the courts to take a more liberal and wider approach towards such rights and for this, a global picture has been provided by the author.
Our Indian democracy is based on reformative philosophy and currently, the court stance towards its viability seems bleak and unsatisfactory. Therefore, the right to vote of the prisoners must be accepted on the face of it, and they must be granted their rights to uphold all their fundamental beliefs and this paper is a small contribution from the authors in this benign direction.
About the Authors– As a law students authors have their deep interest in writing and reading particularly about the constitution law. We believe in writing with the sole emphasis on bringing a change in society. To be precise we believe in “Write to change” rather than simply “write to analyze”