Analysis on voting rights of under-trials and convicts

Analysis on voting rights of under-trials and convicts

Kamaraj IAS Academy | Analysis on voting rights of under-trials and convicts
  • April 19, 2019, 12:12 pm

Plea in SC on voting rights of undertrials and convicts: World’s largest democratic process III


In this Largest democracy, 900 million of its 1.3 billion people are expected to exercise their franchise over April and May 2019 elections in India. Amidst this massive celebration of democracy, a small but significant section of the population is still kept out from exercising their vote. These are the around 400,000 prisoners housed across Indian jails.


This week three students’ petition challenged the constitutional validity of section 62(5) of The Representation of the People Act, 1951, which says, prisoners,


“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.”(i.e., neither convicts nor undertrials, should be allowed to vote)

It argued that a blanket ban on prisoners ’right to vote’, “is a violation of the spirit and soul of the constitution as well as the basic principle of equality.”


Why prisoners?

  • There is no differentiation between those who have been charged with heinous crimes such as murder and sexual assault and minor offences. Hence, those with even minor transgressions are denied their voting rights.
  • All categories of the prison population—convicts, under-trials, and those in custody are denied their right to vote.
  • While changes in laws governing prison conditions and the criminal justice system directly impact them, the prisoners themselves have no say in the choice of representatives who make those changes.
  • It is logical to ask that if incarceration doesn’t strip a person of citizenship, why should it lead to the denial of voting rights?
  • It is ironic that while those charged with crimes can contest elections, they cannot vote. In this case, the prisoners are deemed to be lesser citizens even before their crimes have been proven.
  • This form of exclusion disproportionately affects the socioeconomically disadvantaged. An overwhelming majority of those in jails belong to marginalised sections—53% being Muslim, Dalit and Adivasis, according to a 2017 report by the Amnesty International.
  • In any case, India’s jails are running at 114% of their capacity, according to a report based on NCRB data



Principle of 'felony disenfranchisement'

The principle of 'felony disenfranchisement' upon which sec 62(5) is based, finds its base in the doctrine of 'civic death' – that a convict forfeits all his family and political rights.


Case in common-law countries:

In the UK and Russia, a convicted prisoner still does not have the right to vote on the reasoning that the conviction brings with it a restriction of liberties. However, the principle of felony disenfranchisement has now been abandoned in many progressive common law jurisdictions. Where a provision debarred prisoners serving a sentence for more than two years from voting, the Canadian Supreme Court struck down the same observing that the right to vote was fundamental to democracy and the rule of law. In South Africa, where convicted prisoners were deprived of their right to participate in elections, the Constitutional Court declared the same to be invalid and inconsistent with the constitution.


It can be inferred from the judgments of the Indian Supreme Court on rights of prisoners – convicted or otherwise (for e.g. D.K. Basu, Sunil Batra, Francis Corallie Mullin cases); the doctrine of civic death cannot find a strict application in our democracy. However, with no regard for proportionality, the RPA expands the principle of felony disenfranchisement by going beyond the requirement for conviction and includes under-trials in its ambit. By corollary, apart from the right of incarcerated persons to vote; the principle of 'innocent until proven guilty'– a cornerstone principle of our adversarial criminal justice system, too becomes an unsuspecting victim to this institutionalized injustice.


Given the state of affairs of our criminal justice system – overburdened and understaffed; it is hardly surprising that two-thirds of all persons incarcerated are under-trials. As per the Prison Statistics 2015, there were 2,82,076 under-trials and 1,34,168 convicts incarcerated in various prisons across the country. Moreover, this figure does not include the statistically significant figure of those under lawful detention of the police on the days of the election.


Firstly, as per the three-judge bench of the Apex Court in the PUCL (2013) case, the right to vote in India, is not a constitutional or a fundamental right but a statutory right in contradistinction to the freedom of voting, a subspecies of the freedom of expression under Article 19(1)(a). Further, it can be subjected to critique for upholding the view taken in the Kuldip Nayar case that the right to vote, as distinct from the freedom to vote is a statutory right without adequately engaging with Reddi J.'s judgment in the PUCL (2003) case which states unambiguously that the right to vote, if not a fundamental right is certainly a constitutional right.


Secondly, the discrimination between those confined in prisons and those convicted and out on bail or those in preventive detention has already been argued before the Supreme Court in the case of Anukul Chandra Pradhan v. UOI (1997). This argument was rejected on the ground that the object of the legislation is the decriminalization of politics even though the judgment is silent on the point of how preventing under-trials or even convicts from voting will help avoid a 'criminalization of politics.' Ironically, under section 8(3) of the RP Act, a person convicted for an offence which carries imprisonment of under two years is eligible for contesting an election.


Thirdly, in the Anukul case, the Supreme Court almost echoed the 'civic death' doctrine in its comment that "the person who is in prison for his own conduct is deprived of his liberty during the period of his imprisonment and cannot claim equal freedom" and consequently, "Restriction on voting results automatically from his confinement." While it is acceptable that incarceration may place a certain restriction on the freedoms of the prisoners (for e.g. the freedom of movement), it is certainly not acceptable that they are deprived of those rights which not only form a part of our constitutional mandate but are fundamental to the health our democracy.


Lastly, the argument that sec. 62(5) of the R.P. Act places restrictions on the right to freedom of expression of the prisoners may hold weight. However, it is debatable whether the denial of voting rights to prisoners comes under 'reasonable restriction' thesis of the judiciary. The impugned provisions of the RP Act seem flawed owing to the fact that they violate the basic fundamental right of Right to life. Right to life includes the right to choose. The laws made in the parliament are equally applicable to prisoners. Therefore, all including those behind the bars, have the right to choose their representatives. In two weeks the court is set to take the issue again.