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Don’t deny voting right to prisoners

ON March 19, the Delhi High Court issued a notice to the Election Commission of India (ECI) on a public interest litigation (PIL) pertaining to the denial of voting rights to prisoners — both undertrials and convicts.

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GS Bajpai
Professor, National Law University, Delhi

ON March 19, the Delhi High Court issued a notice to the Election Commission of India (ECI) on a public interest litigation (PIL) pertaining to the denial of voting rights to prisoners — both undertrials and convicts. Primarily, averments have been made by the petitioners on the grounds that Section 62(5) of the Representation of the People (RP) Act, 1951, is violative of Articles 14, 19 and 21 as it prevents a prisoner from exercising his right to expression — voting being a medium of expression as per the apex court in PUCL & others vs Union of India (PUCL 2013) — and that it discriminates between those incarcerated and those out on bail or under preventive detention.

The principle of ‘felony disenfranchisement’, upon which Section 62(5) is based, finds its moorings in the doctrine of ‘civic death’ — that a convict forfeits all his family and political rights. 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. The Canadian Supreme Court struck down a provision debarring prisoners serving a sentence for more than two years from voting, 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 the elections, the Constitutional Court declared the same to be invalid and inconsistent with the constitution.

As can be inferred from the judgments of the Indian Supreme Court on the rights of prisoners — convicted or otherwise (for instance, DK Basu, Sunil Batra, Francis Coralie Mullin cases), the doctrine of civic death cannot find a strict application in our democracy. However, with no regard for proportionality, the RP Act expands the principle of felony disenfranchisement by going beyond the requirement for conviction and includes undertrials 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 institutionalised injustice. 

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

Several institutional barriers stand in the way of the petitioners — many of which have been set up by the Supreme Court itself. 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 sub specie of the freedom of expression under Article 19(1)(a). Further, the reliance of the petitioners on Rajbala vs State of Haryana (2015) on this point is potentially problematic, given that the two- judge Bench holds the right to vote to be a constitutional right without taking note of the PUCL (2013) case and is per incuriam to that extent. It is a different matter that the PUCL (2013) judgment 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.

The averment of discrimination between those confined to prisons and those convicted and out on bail or those under preventive detention has already been argued before the Supreme Court in the case of Anukul Chandra Pradhan vs Union of India (1997). This argument was rejected on the grounds that the object of the legislation is decriminalisation of politics, even though the judgment is silent on the point of how preventing undertrials or even convicts from voting will help avoid ‘criminalisation of politics’. Ironically, under Section 8(3) of the RP Act, a person convicted of an offence which carries imprisonment of under two years is eligible to contest an election.

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 certain restrictions on the freedom of the prisoners (for example, freedom of movement), it is certainly not acceptable that they be deprived of those rights which not only form a part of our constitutional mandate but are also fundamental to the health of our democracy.

The petitioners’ argument that Section 62(5) of the RP Act places restrictions on the right to freedom of expression of the prisoners may hold weight. However, the petitioners’ forum of choice (Delhi HC) may find itself institutionally constrained to order substantive relief.

It is debatable whether denial of voting rights to prisoners comes under the ‘reasonable restriction’ thesis of the judiciary. The RP Act seems flawed owing to the fact that it violates a basic fundamental right — right to life. Right to life includes the right to choose. The laws made in Parliament are equally applicable to prisoners. Therefore, all, including those behind the bars, have the right to choose their representatives.

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