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Denial Of Voting Rights To Undertrial Prisoners: An Unreasonable And Unjust Disqualification

Bhakti Parekh

18 Oct 2021 11:28 AM GMT

    • Let Employees Cast Their Vote On Election Day, Even If It Entails A Degree Of Inconvenience:

    When discussing the definition of democracy, Abraham Lincoln's words come to mind. He defined democracy as "Government of the people, by the people, for the people."

    This definition of democracy by former U.S. President speaks volumes and captures the essential feature of democracy – People or Citizens. One of the most important features of a democracy is its focus on active participation of the people as citizens in the political and civic life.

    In a democracy, people have the responsibility of choosing or electing their leaders who form the government, Voting is an important right as well as responsibility in a democracy. It allows for the participation of the citizens as well as for the expression of choice. Participation in a democracy though not confined to the electoral process, participation in the electoral process is seen as the essence of democracy. Methods of participation other than voting do exist – such as the process of referendum in New Zealand where a vote is taken on a question and can indicate the opinion of the general public.

    India is an indirect or representative democracy and follows the parliamentary form of democracy. Voting and participation in the electoral process is the most important aspect. However, it should be noted that though the right to vote is fundamental for the operation of a democracy, in India, there exist certain grounds for disqualification. The disqualifications are those of unsoundness of mind, non-residence and crime/corrupt/illegal practices. In a recent case, Praveen Kumar Chaudhary v. Election Commission of India [W.P. (C) 2336/ 2019], the Delhi High Court reaffirmed that prisoners do not have a right to vote.

    Through this article, an attempt has been made to analyze the Delhi High Court Judgement and to further argue that the right to vote should be accorded to a certain class of prisoners. It will then, be of importance to understand the right to vote and the status it has been accorded in the Indian context before delving into the issues which relate to disqualification.

    Two important questions that arise:

    1. Whether the right to vote, being fundamental to the functioning of a democracy, be accorded the status of a mere statutory right?
    2. Whether the grounds of disqualification provided for in section 62(5) of the Representation of People Act, 1951 are reasonable insofar that a distinction is not made between the different classes of prisoners?

    To answer the first question, it is important to understand the right to vote in the Indian context. Part XV of the Constitution of India deals with elections. Article 325 and 326 lay down the foundations for universal adult suffrage and deal with the right to vote. Article 326 of the Constitution of India provides that elections to the House of People and to the Legislative Assemblies of the States is to be on the basis of adult suffrage. The Article reads:

    "The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less that eighteen years of age on such date as may be fixed in the behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election."

    Article 325 deals with the inclusion of persons into the electoral roll and reads:

    "No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex. – There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them."

    Further, section 62 of the Representation of the People Act, 1951 provides for the right to vote by stating in its clause (1): "No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency."

    Thus, every citizen, eighteen years and above is entitled to be enrolled in the electoral roll and further, is entitled to vote in the constituency in which his name is entered in the electoral role.

    It can be said that there is a certain amount of confusion as to whether the right to vote is a constitutional right or not. The character of the right to vote was not something that was given too much attention in the Constitutional Assembly Debates. However, the concept of universal adult suffrage was given a high importance and Dr. B.R. Ambedkar was the one who argued that the adult suffrage needs to be universal in nature and the disqualifications should be narrow and be such that preserve the integrity of the electoral process. KM Panikkar stated that "adult suffrage, the acceptance of the fullest implication of democracy was the most striking feature of the Constitution". It is clear that the right to vote was an integral part of the vision that the makers of the Constitution had for India.

    The Judiciary has over the years given judgements relating to the right to vote in a manner which seems to have caused confusion regarding the nature of the right. In the case of Rama Kant Pandey v. Union of India (1993 2 SCC 438) referred to the observations made in Jyoti Basu v. Debi Ghosal (AIR 1982 SC 983) and stated that, "A right to elect, fundamental though it is to a democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right." Then in People's Union for Civil Liberties (PUCL) v. Union of India (2003 4 SCC 399), Justice Reddi stated that, "The right to vote for the candidate of one's choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act…It is not very accurate to describe it as a statutory right, pure and simple." Later, in the case of Kuldip Nayar v. Union of India (2006 7 SCC 1), the submission that the majority view in the PUCL case, is that the right to vote is a constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution was not accepted. And the court drew its attention to the fine distinction that has been drawn between the right to vote and the freedom of voting. Freedom of voting is a species of freedom of expression however, the right to vote is only a statutory right. In the NOTA case, i.e., the People's Union for Civil Liberties v. Union of India (2013 10 SCC 1), held that the right not to vote is part of expression of a voter in a parliamentary democracy and has to be recognized and given effect to in the same manner as right to vote. The Court also looked into the doubt and confusion created by the above judgements as to the nature of the right to vote and held that the cases of Association for Democratic Reforms (2002 5 SCC 294) and People's Union for Civil Liberties (2003 4 SCC 399) have not changed the legal position of the right to vote and that it is statutory in nature. Both judgements have only added that the right to know the background of a candidate is a fundamental right of a voter so that he can take a rational decision of expressing himself while exercising the statutory right to vote.

    In the case of Kesavananda Bharati v. State of Kerala (1973 4 SCC 225), it was held that the power of amendment does not permit the altering of the basic structure of the Constitution. All the seven judges who constituted the majority agreed that democratic set-up was part of the basic structure of the Constitution.

    Thus, even though the right to vote is an essential to free and fair elections which in turn is an essential to a democratic setup which is a part of the basic structure of the constitution, is not a constitutional right and merely a statutory right. This, in my opinion, is in itself a flawed position. The right to vote should be at the very least a constitutional right. I say this because, a statutory right can be taken away by a simple amendment to the statute and amending a statute is by far easier that amending the Constitution. According the right to vote a constitutional status would provide for a greater protection of the right which is essential to the democratic setup.

    To answer the second question, it is necessary to look at the disqualifications given under Article 326. Now, as seen before, the grounds for disqualification provided for in Article 326 are those of non-residence, unsoundness of mind, crime or corrupt or illegal practices only. It is also of importance to understand the differences between convicts and undertrial prisoners. Section 62 of the People Representation Act, 1951 provides for the right to vote. The question here is whether the people who are disqualified by Section 62(5), are disqualified in a just and reasonable manner. Section 62(5) reads:

    "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.

    Provided further that by reason of prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector."

    It should be noted that according to the Model Prison Manual 2016 published by the Ministry of Home Affairs, Government of India, defines the terms 'prisoner', 'convict' and 'undertrial prisoner'.

    • Prisoner: Any person confined in prison under the order of a competent authority.
    • Convict: Any prisoner under sentence of a court exercising criminal jurisdiction or court martial and includes a person detained in prison under the provisions of chapter VIII of the Code of Criminal Procedure of 1973 and the Prisoners Act of 1900.
    • Under-trial prisoners: A person who has been committed to judicial custody pending investigation or trial by a competent authority.

    Basically, the subsection disqualifies any person who is in confined in a prison no matter the reason and also disqualifies any person in police custody. This means that convicted prisoners, undertrial prisoners and anybody in police custody does not have the right to vote as long as the person is in such imprisonment or such custody.

    In the Delhi High Court case of Praveen Kumar Chaudhary v. Election Commission of India [W.P. (C) 2336/ 2019] a public interest litigation was preferred challenging the constitutionality of Section 62(5) of Representation of the People Act, 1951. The High Court while stating that the section in question is constitutionally valid cited previous Supreme Court judgements and the reasons given by them.

    The case of Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India [1997 6 SCC 1], is of particular importance and was referred to by the Delhi High Court. Here, in this case, the Apex Court stated while speaking towards the validity of the section stated that it is a settled principle that Article 14 permits reasonable classification which has a rational nexus with the object of classification. This provision made in the election law excluding persons with a criminal background was to further the objective of preventing criminalization of politics and maintaining probity in elections. Further, it stated that while adjudicating on the validity it is important to give the provision context by taking a look at the existing conditions in which the law is applied. "Criminalization of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution." Other reasons justifying the classification were that to conduct free, fair and orderly elections, there is a need to deploy considerable police force and here I would like to quote the judgement here, "Permitting every person in prison also to vote would require the deployment of a much larger police force and much greater security arrangements in the conduct of elections. Apart from the resource crunch, the other constraints relating to availability of more police force and infrastructure facilities are additional factors to justify the restrictions imposed by sub-section (5) of Section 62. A person who is in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech and expression with the others who are not in prison. The classification of persons in and out of prison separately is reasonable… Moreover, if the object is to keep persons with criminal background away from the election scene, a provision imposing a restriction on a prisoner to vote cannot be called unreasonable."

    This judgement has been agreed with in a host of subsequent cases such as S. Radhakrishnan v. Union of India [WP (C) 1028.1990] in the Supreme Court of India and Manohar Lal Sharma v. Union of India [(2014) 2 High Court Cases (Del) 1] in the Delhi High Court.

    However, in my opinion, this reasoning of the court is flawed. The problem with Section 62(5) is that it disqualifies undertrial prisoners as well. Undertrial prisoners are those who have been charged and their trial is not complete, meaning that they have not been convicted or acquitted of the crimes or offences they have been accused of. The principle of innocent until proven guilty should apply to them even when it comes to disqualification on grounds so mentioned in Article 326. The right to equality of the undertrials enshrined in Article 14 is thus violated. They are treated like convicts despite the fact that they have not been convicted. Here it is important to note that convicts are also given certain rights where they are granted leave and let out of prison on certain grounds. There are two types of leaves that can be granted to a convict i.e., emergency leave and ordinary leave. The rules which deal with these or the suspension of sentences is not central in nature and are made by various states. In general, such leaves are granted to convicted prisoners for the purposes of illness, death and marriage of blood relatives, arrangement of marriage of son, daughter, brother or sister; for the purposes of settlement of property, home repair or agricultural harvesting. These leaves are subject to certain conditions. However, there are no such provisions made for undertrial prisoners and the only option they have is that of bail. It can be seen here that convicts, the prisoners already found guilty and serving a sentence tend to have more freedom than undertrial prisoners, prisoners still awaiting a verdict and not yet formally found guilty. Another issue that arises is that undertrials out on bail are not disqualified from voting. This means that a further distinction has been made among the class of undertrials – the ones who can either afford bail or have been granted mandatory bail and the ones who cannot afford bail. The former can vote whereas the latter cannot. Another distinction here, to be remembered is that convicted persons out on parole have the right to vote. So, if the reason for not allowing prisoners to vote is that of criminalization of politics and preserving the essence of free and fair elections, then these convicted persons should also not be allowed to vote either. Further it is interesting to note that people with criminal histories or people convicted of crimes who have served their sentences or punishments are allowed to contest elections. This means that people with a criminal past are allowed to run for elections and such people are not inherently disqualified on the basis of this. However, at the same time, people who have been accused and yet not tried (meaning they may be innocent) but in custody of the police are not allowed to vote. In what manner, can it then be said that this is in an attempt to cleanse the system and is a process of decriminalizing politics?

    It should be kept in mind that undertrial prisoners form the majority of the prison population. According to the National Crime Records Bureau report of 2019, there were a total of 4,78,600 prisoners were confined in various jails across the country out of which undertrials were 3,30,487. This means that undertrial prisoners formed 69.05% of the total inmate population in India. Out of this number of 3,30,487, a total of 3,27,508 were Indian nationals. Out of all the undertrials in prison a total of 3602 were mentally ill. Another thing to note is that the undertrial prisoners form the highest amount of prison population and it has been consistently high at an average of 66.97% over the past years. Another reason given for denying this right to prisoners is the resource crunch and the greater security arrangements that would have to be made in order for the prisoners to exercise the right to vote. Being an inconvenience to the administration and resource crunch cannot be cited as a justification for taking away the right to vote which is an important one to the democratic set up of our country. The Election Commission has had a changing viewpoint on the aspect of the right of prisoners to vote. In 2009, the then Chief Election Commissioner Navin Chawla said that he was serious about enfranchising undertrial prisoners. Over time though, this stance changed and the Election Commission of India in the proceedings of a Delhi High Court case stated that prisoners do not voting rights.

    Thus, it can be said that this situation clearly is a violation of their rights. Such an important right as the right to vote, which is fundamental to the functioning of the State as a democracy is being thus denied to undertrial prisoners.

    One could also look at the international scenario regarding this issue. In some countries, prisoners retain franchise and this serves as the basis of their status as citizens. In democratic countries like South Africa, Canada and Switzerland allow all prisoners to vote. This means that the felons or convicted prisoners are also allowed to vote while they are serving their sentence of imprisonment in prison. Other countries like Israel, Japan and Sweden let prisoners vote subject to varying degrees or conditions. This means that disenfranchisement is conditional and not absolute. The argument made is that the right to vote is fundamental to democracy and taking away voting rights is like causing civic death.

    Now the question that arises is as to how this situation can be remedied. There are in my opinion, a few ways to do this.

    • First, undertrials being incarcerated is against their rights. Every person needs to be presumed innocent until proven guilty. By imprisoning undertrials, they are being deprived of their liberty and are also being punished like the convicts who have been tried and convicted. So, the solution, albeit a bit impractical, would be to not incarcerate undertrials. This however, is unlikely and impractical.
    • Next, undertrials should be let out on bail more easily. The conditions for bail and the surety required should be set to amounts which can be footed by the undertrials. Many are poor and cannot give high amounts and thus languish in the prisons till they are let out on mandatory bail.
    • The third option, it to let undertrials vote. Arrangements should be made in the prisons itself to allow the undertrial prisoners to cast their vote. This would cut down the costs of transporting the prisoners to the polling booth or polling station.
    • Fourth, undertrials who have not been allowed to vote due to the fact that they were in prison at the time of elections, should be compensated for not being allowed to exercise their right to vote which is in my opinion of a constitutional nature. This would make not allowing the prisoners to vote also an inconvenience which in turn might help in the enforcement of the right.

    In conclusion, I would like to quote Naomi Klein, a Canadian author and social activist here – "Democracy is not just the right to vote, it is the right to live in dignity." If the democratic setup is a part of the basic structure of our constitution and the right to vote is the exercise of the principles of choice in democracy, then even the undertrial prisoners should be given that choice for the sole reason that they too have a right to live in dignity. Convicted prisoners and undertrials should be differentiated for the purposes of the electoral system too, if for nothing else but the sole purpose of upholding the principle that a person is innocent until proven guilty. For I sincerely believe that if the reason to take away an innocent person's right is that of the inconvenience that would be faced by the administration to give them that right, is a dangerous road to go down and should in no circumstance be taken.


    The author, Bhakti Parekh has contributed this write-up during her research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.













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