Should Prisoners Have A Right to Vote?

In response to a public interest litigation, Delhi High Court in Praveen Kumar Chaudhary v. Election Commission of India has reaffirmed that prisoners do not have a right to vote, thereby upholding the constitutional validity of Section 62(5) of the Representation of the People Act 1951.[i]

WHAT DOES THE LAW SAY?

Section 62(5) of the Representation of the People Act 1951 states that a person who-

  • is confined in a prison, under a sentence of-
    • imprisonment,
    • transportation, or
    • otherwise, or
  • is in the lawful custody of the police,

is not allowed to vote at any election. This limitation is not applicable to a person under preventive detention under any law for the time being in force.

JUDGMENT OF THE COURT

The court relied upon Anukul Chandra Prdhan, Advocate Supreme Court v. Union of India[ii] in which it was opined that the object behind excluding persons with criminal backgrounds from election scene is to prevent criminalization of politics and maintain probity in elections, and therefore, a person who is in prison as a result of his own conduct and is deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech and expression with the others who are not in prison. The court further opined-

 “Criminalization of politics is the bane of society and 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 order which are the essence of democracy must, therefore, be so viewed.”

The court opined that-

“The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved.”

The court further stated 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 limitation impose by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”

ANALYSIS

International treaty obligations

All the prisoners shall retain the human rights and fundamental freedoms set out in UDHR, ICESCR, ICCPR and other United Nations Covenants, except for those limitations that are demonstrably necessitated by the fact of incarceration.[iii]

Article 21 of Universal Declaration of Human Rights (UDHR) provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Article 25 of International Covenant on Civil and Political Rights (ICCPR) provides for right to vote and Article 2 states that “no distinction should be made based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” ‘Other status’ here may include the status of being a prisoner, and hence, there should not be any distinction on any of the grounds aforementioned, including being a prisoner, in granting the right to vote.

India is a signatory to UDHR and ICCPR and Article 51(c) of the Constitution of India 1950 mandates respect for treaty obligations. Precluding prisoners and under-trials from voting violates the basic principles of UDHR and ICCPR, thereby violating Article 51(c) of the Constitution because right to vote cannot be said to be a limitation that is demonstrably necessitated by the fact of incarceration.

Pre-trial detainees, under-trials and people released on bail

The pre-trial detainees and under-trials are not allowed to vote, which violates the very principle of law that a person is innocent until proven guilty. The pre-trial detainee is a person who is detained before a trial has taken place and under-trial is a person who is detained and trial has not been completed yet. This implies that such persons have not been yet proved guilty, and therefore they are innocent. If the object behind precluding prisoners from voting was to prevent criminalization of politics, then people released on bail should also be precluded, but in reality, no bar has been placed upon them and they are entitled to vote.[iv]

Allowing people released on bail to vote and disallowing pre-trial detainees and under-trials to vote violates Article 14 of the Constitution and there cannot be seen any reasonable classification having nexus with the object sought to be achieved, i.e. prevention of criminalization of politics.

Right of prisoner to contest elections

In 2013, Supreme Court held that a person who is in prison or under police custody cannot contest election to legislative bodies as only an ‘elector’ can contest election, and a person in police custody has no right to vote.[v] In order to nullify the judgment, the Parliament amended the Representation of People Act 1951 and added a provision stating that a person does not cease to be an elector only by reason of his being in police custody or in prison, and therefore he can contest elections.[vi] Further, Section 62(5) of the Act precludes a person in prison or under police custody from voting. The amendment has juxtaposed two rights (Right to contest elections and Right to vote) of a person in similar situation (in a prison or under police custody), i.e. a prisoner can contest elections but cannot vote, which violates Article 14 of the Constitution.

If a person is convicted of any offence and sentenced to imprisonment for two years or more, then he will be disqualified from contesting elections.[vii] The underlying objective behind this provision is to enable a person convicted of an offence with less severity to contest elections. But, such a classification of duration of imprisonment and severity of offence has not been considered in right to vote and a blanket ban has been imposed. This again violates Article 14 of the Constitution.

Right to vote- Constitutional/ Fundamental/ Legal Right?

The Supreme Court, in various decisions, have held that right to vote is neither a constitutional right nor a fundamental right, rather it is a legal right, created by statue and subject to the limitations imposed by it.[viii]

In a contrasting judgment, Supreme Court in 2003 has held that right to vote, though not fundamental right, but certainly is a constitutional right because the right originates from the Constitution mandate contained in Article 326 and it has been shaped by the statute, i.e. the Representation of People Act 1951.[ix]

But, Delhi Court again in 2014[x] and 2020[xi], without taking into consideration the 2003 Supreme Court judgment, has held that right to vote is neither a fundamental right nor a constitutional right, but merely a legal right. Therefore, both the judgments of Delhi High Court should be held per-incuriam.

Democratic Values

Right to vote for prisoners is a step towards shaping our criminal justice system into a caring, reform-oriented institution, one that abides by the universally accepted human rights values.

The treatment of prisoners should emphasize not their exclusion from community, but their continuing part in it.[xii] To deny inmates the right to vote is to lose an important means of teaching them democratic values and social responsibility and removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration.[xiii]

The issues like custodial violence, overcrowding in prisons, and lack of facilities can never be dealt with completely if prisoners are not made stakeholders in the democratic voting process. A blanket ban on voting rights is a violation of the spirit and soul of the Constitution. In an era where discussions are being held on conjugal rights of prisoners, is the right to vote not a bare minimal need?

Trends across the world

There are three methodologies accepted across the world with respect to granting right to vote to prisoners. Firstly, countries which have given full voting rights to prisoners (Slovenia, Ireland, Iran, Israel, Pakistan, South Africa, Ghana, Kenya, Botswana, etc.) Secondly, countries where a blanket ban has been imposed on right to vote (United Kingdom, New Zealand, etc.) (but in these countries, ban has been imposed upon convicted prisoners and under-trials are allowed to vote). Thirdly, countries which have provided right to vote but imposed certain limitations relating to severity or type of offence. (Germany bars those convicted of terrorism charges; Australia bars those sentenced to imprisonment for three years or more, etc.)

India has adopted the second methodology but has even excluded under-trials from voting.

Conclusion

Section 62(5) of the Representation of the People Act 1951 is violative of Article 14 of the Constitution, and thereby should be held unconstitutional. A further aspect which should be pondered upon is whether Section 8(3) of Representation of People Act 1951, which states that a person who is convicted of an offence and sentenced to imprisonment for two or more years is not allowed to contest elections, is actually followed? If not, what are the repercussions of it?

Suggestions

  1. There must be a balance between the possibility of excluding ‘unworthy’ citizens from exercising their right to vote and the requirement of not depriving them disproportionately of a fundamental right, i.e. ‘a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned is required.’[xiv]
  2. As elections are spine of the democratic functioning of the country, right to vote should not be a legal right (that can be taken away by a statute), rather it should be made a constitutional or fundamental right, so as to ensure maximum participation in the electoral process.

[i] Praveen Kumar Chaudhary v. Election Commission of India, W.P. (C) 2336/ 2019.

[ii] (1997) 6 SCC 1.

[iii] UN General Assembly, Basic principles for the treatment of prisoners: resolution/ adopted by General Assembly, 28 March 1991.

[iv] Chapter 43, General Election 2014 Reference Handbook.

[v] Lily Thomas v. Union of India 2013 (7) SCC 653.

[vi] Proviso, Section 62(5), Representation of the people Act 1951.

[vii] Section 8(3), Representation of the people Act 1951.

[viii] N.P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64; Jyoti Basu v. Debi Ghosal 1982 (3) SCR 318.

[ix] People’s Union of Civil Liberties v. Union of India, AIR (2003) SC 2363.

[x] Manohar Lal Sharma v. Union of India 2014 (141) DRJ 157.

[xi] Praveen Kumar Chaudhary v. Election Commission of India, W.P. (C) 2336/ 2019.

[xii] Rule 88(1), UN General Assembly, United Nations Standard Minimum Rules for the treatment of prisoners (The Nelson Mandela Rules).

[xiii] Sauve v. Canada (Chief Electoral Officer) (2002) 3 S.C.R. 519.

[xiv] Hirst v. The United Kingdom (No2) (2005) ECHR 681.


ABOUT THE AUTHORS

Aniket Thul

DSC_0721 (2)

Aniket Thul is a fifth-year student from Maharashtra National Law University, Nagpur. His areas of interest include Constitutional Law and Environmental law.

Jaya Verma

IMG_20190821_162639_366

Jaya Verma is a fourth-year student from Maharashtra National Law University, Nagpur. Her areas of interest include Environmental Law and Human Rights Law.

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