India Behind Bars: Prisoner’s Right To Vote : Article

India Behind Bars: Prisoner’s Right To Vote

Imprisonment must remain as a means to an end and not an end in itself. Punishment should be a means to reform and not to alienate.

In 1947, when India got its independence, it was designed to function as a true democratic machinery and to give equal right to equals including the right to vote. But the pertinent question to be asked is- Whether a person who is imprisoned (under-trial or convicted), should be allowed to exercise his franchise or not? There are different views on this issue, some in favour and some against the issue. Those who can get bail in any offence are allowed to vote but who could not get bail cannot just vote. Now the anomaly is that if in case of offence punishable with death or life imprisonment, if bail is granted to a person, he can exercise his franchise, but the one who cannot manage to get bail or not able to raise the amount required or the surety required for getting the bail and thus remain in jail, cannot exercise his right to vote. Similarly, those who are in lawful or unlawful custody of the police cannot also vote. So, both of them are not acquitted of their charges but one is allowed to vote whereas other is not. Is this the democracy that our Constitution giver thought to give as a legacy?

So these so called reasonable restrictions makes them lesser citizens and place them outside purview of privileges that is given to other citizens. Today’s reality is that, in every general election around 3-4 lakhs of citizens, who are eligible to vote are deprived of their right. Not because that don’t have voter ID cards but because they are prisoners. It is a common fact that a person, who is not convicted and only under trial, cannot cast his vote from jail or from his detention place but he can very well contest election. Is it not a mockery of law that a person, who cannot cast his vote, can become an M.P., an M.L.A. or a Minister? There are several instances in our country, where people have contested elections, while in jail, and some of them have also won and become M.L.A.s or M.P.s. It has raised serious questions on the viability of the existing electoral system. It can also be said that those who are in lawful or unlawful custody of the police cannot also vote. Police custody for any accused provides immunity to the police for any action but robs the aggrieved from his valuable right to vote.

In India this opposition is primarily due to an emotional reflex that the person alleged for committing an offence has violated some or the other right of another bonafide citizen of India or

has committed a wrongful act against the State and so his rights should be seized. A person who does not abide by a law and the values of the society deserves this punishment of being barred from having any say in the democratic setup of the system. The Constitution under Article 326 guarantees ‘universal adult franchise’ to every citizen of India, being eighteen years or above of age but with some restrictions. Also, the section 62 (5) Representation of People Act, 1951 provides for certain restrictions on voting rights of prisoners.

In Anukul Chandra Pradhan vs Union of India^[1], the Supreme Court upheld the validity of the provisions of section 62(5) of the Representation of Peoples Act, 1951 on two grounds; firstly that Article 14 does not affect it, and secondly the Court observed that the right to vote is subject to the limitations imposed by the statute which can be exercised only in the manner provided by the statute prescribing the nature of the rights to elect cannot be made with reference to fundamental rights in the Constitution.

The denial of voting rights to prisoners is meant to prevent breach of law but persons in jail after conviction or during investigation and trial subsequent to the commission of crimes should be put on different footing, such distinction not being sufficient by itself. A person, who is under trial, may be found innocent, what shall happen then? Is there any provision for compensation to be paid from stopping him to tender his vote? Whether the under trial, who is deprived from his right to vote be compensated, if it is found that he was innocent and remained in jail without any reasonable and probable cause?

Voting, like other rights, is not a privilege which government grants to citizens. As spoken of already, right to vote is agreed to be the base of a democratic system and thus to maintain its integrity, it must be placed beyond the reach of politicians or anybody. If it can be modified easily, it loses its substantive value. Adult franchise is the surest way of achieving the goals of justice, liberty, equality, brotherhood and dignity enshrined in the Preamble of the Constitution. By allowing inmates to exercise their right to vote, they are allowed to influence law and policy making in a constructive manner. The concept of restriction on voting right evolved as it could have violated the fundamental rights of others but there is no reasonable explanation one can give for such restriction being imposed on the under trials. Even those who are convicted are first time offenders involved in minor violations of law. Very few are hardened criminals. In a conservative society like ours, a tag of being in prison is itself a big stigma. It should not be further extended to

the alienation from society, in this respect. The penal laws have already specified punishments for all types of offences which should not be increased by adding this restriction to it.

An individual votes as a part of the society, as a citizen, to cast his wish, to show that he has a separate identity and if he is not allowed to vote it is like he has no stake in the society. Denial of voting rights is negation of his citizenship. A dead person cannot vote, similarly, disenfranchising a prisoner leads to his ‘civil death’.

^[1] AIR 2000 SC 3421

By : Shiva Vishnoi, 

National Law University- Shimla.