We do not have government by the majority. We have government by the majority who participate – Thomas Jefferson
India is the biggest democracy of the world. The Chief Election Commissioner, Sunil Arora stated that the total electorate in the 2019 Lok Sabha polls would be 900 million. However, this whole festival of democracy was a disappointment for 4,33,0031 Indian citizens who weren’t able to cast their votes because they were inside prisons. Prisoner’s population rate is 33% per 1, 00,000 population in India2.
On 16th April, 2019 three law students have filed a Public Interest Litigation case against the constitutional validity of Section 62(5) of the Representation of the People Act, 1951, in order to accord disenfranchised prisoners the right to vote.
Article 326 of the Indian Constitution as well gives every person who is a citizen of India and who is not less than eighteen years of age the right to vote and choose their representation.
The Representation of the People Act, 1951, Section 62(5) states 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: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”
Chapter 43 of the Reference Handbook on the General Elections, released by the Election Commission in 2014, further excluded under-trial prisoners from voting even if their names are on electoral rolls.
Why voting rights should be extended to the prisoners and under trials?
One of the important principles of criminal jurisprudence followed by Indian judicial system ‘innocent until proven guilty’ is completely overlooked in this regard. The under trials are 67.2%3 of the inmates which basically means it is not even yet proved if they are guilty or not. This is an arbitrary and unreasonable section which is against article 14 of the constitution.
The preamble of our Constitution aims at securing equality of status and opportunity to all of its citizens. Section 62(5) of Representation of the People Act, 1951 infringes the right to equality by not allowing the prisoners and under trials to their exercise their right to vote. This blanket ban is arbitrary. On the other hand, people who are detained are allowed to vote and this classification is not reasonable. Besides, people who can afford a bail can get the opportunity to exercise their vote and people who cannot afford to get bail lose their right and their expression. This connection between bail and right to vote is completely unreasonable, and thus violates the basic principles of equality. Further, there is no distinction made between those who have committed very severe and heinous crimes like murder or rape and those who have committed minor crimes. This blanket ban has put all the offenders on the same footing and all of them irrespective of their offences would not be allowed to vote.
Voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question3. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. Therefore, not allowing a citizen to vote is basically infringing his right to speech and expression under section 19(1) (a).
Free and fair election is a basic structure of the Constitution4. Democracy is the basic structure of the constitution.5There are 1,401 jails in India with the occupancy rate of 114.4%, thus jails are at 14% over capacity according to figures compiled by the National Crime Records Bureau in 2015.6 Today, representatives of people are elected without the votes of a big share of prisoners who basically make prison laws and can bring reforms in our current prison system. These representatives are elected and they frame laws without having any say of the prisoners to whom those laws will actually affect. Bringing progressive prison reforms is the need of the hour and this can be done only with the participation of the prisoners.
This section hence, violates article 14, 19(1) (a) and 21of the constitution and hence violates the basic structure of the constitution.
Under Sections 34 Chapter VII of the Prisons Act, 1894, prisoners can work and follow any trade or profession with the prison superintendent’s permission. This is a section which intends to reform the prisoners. Just because a person has committed a crime, his life is not over. He is given another chance to reform himself by providing his education and opportunity to work within the jails itself. Then, why not also provide them the right to choose their leaders as well?
The honourable court in Anukul Chandra Pradhan v. Union of India7 stated that it is reasonable to deny voting rights to convicted prisoners, under trials and those in police custody in order to done to curb the criminalization of politics. However, as per section 8(3) of The Representation of the People Act, 1951, a person convicted of any offence and sentenced to imprisonment for not less than two years can contest elections, but cannot vote. This is one of the biggest ironies of present set up where an offender can contest elections however, an offender cannot vote in the same.
Article 21 of Human Declaration of Human Rights states:
Everyone has the right to take part in the government of his country, directly or through freely chooses representatives.
India is a party to the covenant. Article 25 of the International Covenant on Civil and Political Rights which states that every citizen has the right to vote by universal and equal suffrage guaranteeing the free expression of the will of the electors;
Section 51 of the Constitution mandates respect for international treaties.
Thus, Section 62(5) is in contradiction with article 21 of The Universal Declaration of Human Rights (UDHR) and with International Covenant on Civil and Political Rights and thus in violation of article 51 of the Constitution.
Allowing the prisoners to vote would be a huge step in prison reforms. Denial to give the right to vote would pose a serious question on the citizenship of the inmates of the prison. Imprisonment doesn’t technically lead to loss of citizenship. A person convicted of an offence would still be very Indian. Then, why such an important right towards the democratic system of the nation is taken away from them?
Author: Mayuri Jain from Veer Narmad South Gujarat University.