The issue of voting rights for undertrial prisoners props up every time when there is a major election. So, unsurprisingly, it has gained renewed relevance in light of the current Lok Sabha elections. As discussions on democracy and electoral processes intensify, the contentious debate over whether undertrial prisoners should retain their voting rights continues to get attention. This issue raises fundamental questions about justice, equality, and the rights of individuals in the criminal justice system.
In India, Voting has been recognised as a legal right under the article 326 of the constitution. It is not a fundamental right as held by the five-judge bench of supreme court in ‘Kuldip Nayar Vs Union of India & Ors case.[1] There exist certain restriction on the right to vote, one of which is provided in section 62(5) of the Representation of People act which 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..”[2] This law effectively prevents anyone with criminal charges framed against them from voting, unless they have been released on bail or acquitted. Hence, even though the charge of crime has not yet been proved, they are treated on par with convicted prisoners when it comes to voting rights.
The criminal justice system in our country aims to protect the right of not only the victims but also undertrials, prisoners and also convicts. Their fundamental and basic rights must not be denied to them. According to the Law commission’s 78th report from 1979, “undertrial prisoners, also known as pre-trial detainees, are individuals who have not been convicted and are detained during the investigation, inquiry, or trial of the offense they are accused of”.[3] Generally, undertrial prisoners are individuals undergoing trial, held in custody awaiting trial, or currently in the process of being tried in a court of law.
DATA ON UNDERTRIALS PRISONERS
According to the data of National Crime Records Bureau, as of December 31, 2021, there were 4,27,165 inmates awaiting trial, marking a 14.9% increase from 3,71,848 the previous year.[4] Consequently, a significant portion of Indian society was deprived of their voting rights in elections. Also, undertrial prisoners make up nearly 75% of the total prison population, highlighting a serious issue concerning prisoners’ rights and the fairness of detaining these individuals for extended periods without a conviction. Denying them political right to vote by treating them alike to other convicted prisoners goes against the legal principle of “innocent until proven guilty”.
VIEW POINT OF INDIAN JUDICIARY
There have been a number of cases directly or indirectly dealing with the issue of voting rights of undertrial prisoners. The most recent one was a Public Interest Litigation filed by a law student questioning the complete ban on the prisoner’s voting right as provided in section 62(5) of the Representation of the People Act.[5] The Supreme court dismissed the contention of the petitioner and opined for the status quo. It also noted that the legality of this particular section had already been addressed in Anukul Chandra Pradhan case of 1997, where it was determined that Section 62(5) of the Representation of the People Act, 1951, does not infringe on the rights guaranteed by Articles 14 and 21 of the Constitution and the legislature possesses the discretionary power to exclude certain individuals from exercising their legal right of casting vote. [6] The court provided four grounds for this conclusion – First, it affirmed that a person’s right to vote is a statutory right and can be limited by statute. Second, it cited a “resource crunch,” noting the need for additional infrastructure and police deployment. Third, it stated that a person in prison due to their conduct “cannot claim equal freedom of movement, speech, and expression.” Lastly, it deemed restrictions on prisoners’ voting rights reasonable, as they aim to keep “persons with criminal backgrounds away from the election scene.”
ANALYSIS
The primary question that arises here is whether the disqualification imposed by Section 62(5) is just and reasonable. This section disqualifies any individual confined in prison, regardless of the reason, as well as anyone in the police custody. Consequently, convicted prisoners, undertrial prisoners, and anyone in police custody are denied voting right for the duration of their imprisonment or custody. The issue with this section is that it also bars undertrial prisoners. These individuals have been charged but not yet tried, meaning they have neither been convicted nor acquitted. The doctrine of “innocent until proven guilty” must be extended to them, ensuring their right to equality under Article 14 is upheld. Treating them like convicts despite not having been convicted violates this right.
Also, one more issue is that undertrials out on bail retain their eligibility to vote. Thus, it creates a classification within the group of undertrials—those who can afford bail or have been granted mandatory bail can vote, while those who cannot afford bail remain unable to vote.
Furthermore, one should note that convicted individuals on parole retain the right to vote. If the rationale behind disallowing prisoners the right to vote is to prevent the criminalization of politics and preserve the integrity of free and fair elections, as stated by the Apex Court in the Ankul Chandra Pradhan case, then convicted persons on parole should also be disqualified from voting. Furthermore, it is noteworthy that individuals with past criminal records or those who have completed their sentences for crimes are permitted to run for elections. Moreover, a criminal conviction does not prevent an individual from running for elections (except for the disqualifications listed under Section 8 of the RPA), this implies that individuals with a history of criminal activity can contest in election and are not automatically disqualified on those grounds. Meanwhile, individuals awaiting trial, who have not yet been convicted (and may be innocent), are not allowed to vote if they are in police custody. This contradiction suggests that the process does not effectively cleanse the system or decriminalize politics.
One of the main reasons given for disallowing prisoners the right to vote is the resource crunch and the increased security measures required for them to vote. However, citing administrative inconvenience and resource limitations does not justify depriving prisoners of their voting rights, which are crucial to the democratic framework of our country. For rights to be restricted, the reason must be grounded in the Constitution or meet the criteria of reasonable classification, intelligible differentia, and proportionality, and cannot be based on arbitrary grounds. The Election Commission’s stance on prisoners’ voting rights has evolved over time. Back, in 2009, the 16th Chief Election Commissioner, Navin Chawla expressed intention to enfranchise undertrial prisoners.[7] However, this position shifted, and the Election Commission of India later stated that prisoners should not have voting rights.
TRENDS ACROSS THE WORLD
Many countries, such as Australia, Germany, France, Norway, Portugal and Canada, have recognized the need for progressive criminal justice reforms and have adopted more flexible approaches to prisoners’ voting rights. For example, in Australia, prisoners who are serving sentences of three years or less can vote by mail. Likewise, in Canada, inmates have the facility to vote either by mail or vote within the prison itself.
In the case of Germany, prisoners lose their voting rights if they are found guilty of crimes targeting the state or democratic order. This implies that ordinary criminals like thieves retain their right to vote, while those convicted of terrorism or other serious offence do not. Portugal and Norway similarly allow prisoners to exercise their right to vote unless they are convicted of serious crimes comparable to those in Germany. In France, there are no automatic restrictions on prisoners’ voting rights; instead, courts have the authority to decide each case based on its merits.[8]
SUGGESTIONS
The voting rights of undertrial prisoners are crucial for advancement of our criminal justice system. They constitute nearly 3/4th of the total prisoner population. Denying them voting rights further isolates prisoners from society. In a democracy, citizenship without voting rights diminishes one’s existence. This reality is reflected in Indian politics, where election manifestos seldom address improvements in prison conditions. Prisoners have to rely on others to advocate for their cause. Therefore, one direct outcome of granting prisoners voting rights is that policymakers will be compelled to focus on the needs of prisoners. Several modern democracies allow prisoners to vote, albeit with certain terms and conditions, unlike India, where there is a blanket ban on prisoners voting. Also, it is ironical that an accused person in jail can contest elections but they cannot vote in elections. [9]
There are a number of ways through which enfranchisement of undertrial prisoner can be achieved. Some of these are following –
- Provisions should be made to allow them to cast their vote through postal ballot method or special polling booth should be set up for them in the prison itself. This would reduce the expenses associated with transporting prisoners and providing security on the way to polling stations.
- There should be categorization of different types of prisoners, and provisions should be made to grant the right to vote to undertrial prisoners as well as those convicted of minor or non-serious offenses.
- Undertrials who were unable to vote because they were in prison during election period should be duly compensated for being denied their legal right to vote. This would create a deterrent against disallowing prisoners to vote and could help enforce this right.
Also, keeping in the mind the principle of “bail is the rule and jail is the exception”, undertrials should be granted bail more easily. Bail conditions and the required surety should be made affordable for undertrials as many of them are poor and cannot afford large sum as bail amounts, resulting in prolonged incarceration until mandatory bail is granted.
CONCLUSION
Since the democratic setup is integral to our constitutional basic structure and voting is the embodiment of democratic choice, so the undertrial prisoners should also be granted this right because they too deserve to live with dignity. Undertrials and convicted prisoners should be distinguished from each other within the electoral system, if only to uphold the principle of innocent until proven guilty. Denying the voting rights of innocent individuals due to administrative inconvenience sets a perilous precedent and should never be justified.
Courts should establish a reasonable classification between convicts and undertrials. Furthermore, there should not be differentiation between convicts of serious and minor offenses. Resolving this issue requires finding a middle ground that respects both human rights and principles of criminology.
[1] Kuldip Nayar V. Union of India AIR 2006 SC 3127.
[2] The Representation of People Act,1951
[3] Niranjan Sahoo & Vivek Jain, Justice System in Crisis: The Case of India’s Undertrial Prisoners, Observer Research Foundation Issue Brief (2015).
[4] National Crime Records Bureau, https://ncrb.gov.in/en/prison-statistics-india (last visited Jun 21, 2024).
[5] Aditya Prasanna Bhattacharya V. Union of India, 2023 LiveLaw (SC) 407.
[6] Anukul Chandra Pradhan V. Union of India. Air 1997 Sc 2814.
[7] Times Of India, Undertrials must get right to vote: Election Commission, Times of India (Nov. 23, 2009), https://timesofindia.indiatimes.com/articleshow/5259200.cms.
[8] BBC News, Prisoner votes by European country, BBC News (Nov. 22, 2012), https://www.bbc.com/news/uk-20447504.
[9] Kanu Sarda, Can jailed politicians contest polls? Yes, they can, but cannot vote in an election, India Today (May 30, 2024), https://www.indiatoday.in/law/story/can-politicians-contest-polls-from-jail-yes-but-they-cannot-vote-in-an-election-2545951-2024-05-30.
Author: Shubhranshu
Juris Centre 