Government by the People minus Inmates

Imagine you are a person who has been detained by the authorities. Say the police unlawfully detains you in their custody but the same is yet to be proven in a court of law. Then is it proper to curb your right under the democratic structure of our country, to not allow you to vote during such a period? 

A similar question is being raised by a student of the National Law School of India University in a very recent case to the Honourable Supreme court of India through a PIL asking that when a convict out on a bail is competent to vote then why does an under-trial prisoner who is yet to be convicted by the courts of law is not, where the person could be unlawfully detained as well. 

Discussing about a very essential feature of democracy, voting, without which democracy is meaningless, reminds me of the famous words from former US president Abraham Lincoln who defined democracy as “Government of the people, by the people and for the people”. But this is not quite visible in the actual scenario where citizens are imprisoned either by police custody or lengthy and complex under-trial procedure which deprives a large portion of the society to contest the election, sometimes unreasonably. 

The right to vote is an important feature of a country guided by a Constitution which is supreme, nourishing the tree of democracy and shading the electoral right of citizens under its shade. Every individual has their own personal right to cast their vote in order to elect the representatives of their own choice among the selected candidates contesting to secure the seats in the lower House of Parliament and state legislatures. This right is very important as it assures proper representation of the people of a particular constituency in the Houses in order to raise the issues and views of the people residing in that area so that legislature can effectively address those issues by legislating in that regard. 

Though there is no such explicit mention of the right to vote in the Constitution of India under Part III which deals with fundamental rights it is an extremely vital right for a citizen to be exercised under the democratic structure which is one of the basic structures enshrined under the Constitution of India, therefore, it is implicitly protected, furthermore this is a way of expressing oneself in the system of law-making through the elected representatives, therefore, Article 19 also protects this right in an implicit manner. Also, the principle of adult suffrage is enshrined under Article 326 of the Constitution which confers on every citizen of over 18 years and above the right to be registered as a voter in the elections of Parliament and Legislative Assembly of their respective states if he is not disqualified or otherwise under this Constitution or any law made by the appropriate legislature on the grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice. Article 325 says that no person shall be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex. Therefore this very well portrays how important the right is so that it has to be protected against any discrimination. This gives the right to vote an explicit status of a constitutional right and the implicit status of a fundamental right. 

However, even if the right to vote becomes a part of the basic structure or be upheld as a fundamental right under Article 19(1), the same can be limited by the state under Article 19(2) itself which provides for the imposition of certain reasonable restrictions on the exercise of the rights guaranteed under Article 19(1). Even Article 326 confers power on the legislature to impose certain restrictions on certain grounds. 

In People’s Union of Civil Liberties (PUCL) vs. Union of India, 1996, the Supreme Court recognizes the constitutional status of the right to vote. This was further reiterated in the case of Rajbala vs. State of Haryana, 2015 wherein it was clarified that adult suffrage or the right to vote and the right to contest elections are not merely statutory rights but they are certainly constitutional rights, if not understood to be fundamental rights. The court opined that since the Constitution itself provides for some qualification and disqualification to be a voter and to contest elections, it testifies that these rights are nothing less than a constitutional right as otherwise it would not have been required to “prescribe constitutional limitations on a non-existent constitutional right”. However, when we look at the judgment of PUCL that was interpreted in Kuldip Nayar vs. Union of India, we found that the court was hesitant in giving it a constitutional status. Though it never overruled the PUCL judgment an additional condition was added wherein it was stated that the right to vote has constitutional status only to the extent it leads to the right to have free and fair elections. Therefore Supreme Court upheld the constitutional status of voting rights in India but with a certain limitation on ascertaining what should be considered a right under our Constitution. It is a free and fair election which is a basic structure and not the right to vote, and anything curbing the former would be quashed. 

Democracy and free and fair election is a part of the basic structure of the Constitution and for elections to be free and fair, a guarantee of the right to vote to those who constitute the electorate is a necessary precondition and that protection is both given by our Constitution as well as by the Parliament by introducing The Representation of People Act, 1951 under Article 327. Section 62(5) of the same Act lists some limitations on the right by stating 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, provided that nothing in this sub-section shall apply to preventive detention under any law for the time being in force. 

But the conflict arises when it comes to the interest of the under-trial prisoners, as the latest report of the National Crime Reports Bureau (NCRB) produced in 2021 shows that a total of 5,54,034 prisoners were confined as on 31 December 2021, in various jails across the country. The number of convicts, under-trial prisoners and detainees were reported as 1,22,852, 4,27,165 and 3,470 respectively. Accounting for about 22.2%, 77.1% and 0.6% respectively at the end of 2021. The number of under-trial prisoners has increased from 3,71,848 in 2020 to 4,27,165 in 2021. Uttar Pradesh has the maximum number of under-trials numbering 90,606 accounting for about 21.2%, followed by Bihar having 59,577 under-trials (13.9%) and Maharashtra having about 31,752 under-trials which is about 7.4% at the end of the year 2021. Such a growing rate of under-trials and conviction rates causes a great alarm towards the citizens’ constitutional right and leads to keeping a large section of society away from their right to cast their own votes over a longer period of time. 

However a negative view was taken by the Delhi High Court recently in 2020 in the case of Praveen Kumar Chaudhury & Ors. vs. Election Commission of India, 2020 where it decided on a plaint for issuing a writ of mandamus or any other writ quashing Section 62(5) of the Representation of the People Act, 1951 as violative of the basic structure of the Constitution. Here the petitioner who appeared in person submitted that as per sub-section (5) of Section 62 of the Act, there is no valid classification between the persons who are in jail and the persons who are on bail or out of jail. It has been pointed out that as per sub-section (5) of Section 62 of the Act by reason of prohibition to vote under this sub-section, a person whose name has not been entered in the electoral roll shall not cease to be an elector meaning thereby that such person can contest in the election but he/she cannot cast his/her vote if he/she is in jail for whatsoever reasons it maybe. It is therefore submitted by the petitioners that this type of classification is not valid in the eyes of law and is violative of Article 14 and the basic structure of the Constitution of India. The court held that in the view of the settled law on the point, it must be held that the right to vote is subjected to limitations imposed by the statute which can be exercised only in the manner provided by the statute; and that the challenge to any provisions in the statute prescribing the nature of the right to elect cannot be made in reference to a fundamental right in the Constitution. It further said that “in the view of the aforesaid discussion, we hold that Section 62(5) is constitutionally valid. The classification of persons who are in jail and who are out of jail is valid classification and it has a rational nexus with the object sought to be achieved as stated herein above”. Therefore the writ petition was dismissed by the Delhi High Court. 

Earlier to that a similar view was taken by the Supreme Court of India, which had decided in the case of Anukul Chandra Pradhan vs. Union of India in 1997 where the petitioner submitted that the said Section 62(5) of The Representation of People Act violates Article 14 and 21 of the Constitution. He submitted that the restriction applies to a person in the lawful custody of the police which would include a person detained during an investigation before a chargesheet has been filed against him. On the other hand, a person convicted and sentenced to imprisonment but released on bail is permitted to vote. To this, the Supreme Court said that “it is well settled that Article 14 permits reasonable classification so the main question of issue would be to see that whether the classification is reasonable or not? It is subversive of free and fair elections which is the basic feature of the Constitution. Thus provision made in the election law to promote the object of free and fair election and facilitate maintenance of law and orders which are essence of democracy must, therefore, be so viewed.” A person who is in prison as a result of his own conduct loses some of his fundamental rights to freedom.  The court relied on the case of N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency and Others, 1952 where the Constitution bench held that “the right to vote or stand as a candidate is a creature of statute or special law and must be subjected to limitation imposed by it”. Thus the Delhi High Court in the case of Praveen Kumar Chaudhury complied with the Supreme Court judgment in Anukul Chandra Pradhan and both the courts gave a pessimistic view of the right to vote as an absolute one. 

In some other nations of the world exclusion of voting of people otherwise eligible to vote due to conviction of criminal offence is usually restricted to the more serious classes of crimes. In some common law jurisdictions, those are felonies, hence the popular term ‘felony disenfranchisement’. In western countries, felony disenfranchisement can be traced back to ancient Greek and Roman traditions, removal of the franchise was commonly imposed as a part of the punishment of those convicted of “infamous” crimes, as a part of their “civil death”, whereby these all persons would lose all rights and claims to property. Most medieval common law jurisdictions have developed punishments that provided for some form of exclusion from the community for felons, ranging from execution on sight or execution from community processes, but most of the democracies give the convicted prisoners the same civil right to vote as the other citizens. 

In the international sphere when we talk about the Scottish Parliament where we could see that it gained new powers over elections in the Scotland Act 2016, it became necessary to consider how to comply with the European Convention on Human Rights of prisoners voting. The European Court of Human Rights (ECHR) found in 2005 that the UK’s ban on any convicted prisoners voting in elections goes against human rights. The ECHR is an agreement between European countries to protect their human rights and political freedom. Since 2016, the Scottish Parliament has had the power to say who can vote in Scottish local government elections. The Scottish Parliament’s Equalities and Human Rights Committee asked a large number of people and organizations for their views on what should be done to the prisoners, to this they published a report on 14 May 2018. They reported that the Scottish government should remove the ban on voting keeping these things in mind the Scottish government acknowledged the need to think on such a view but they did not want to let all prisoners vote therefore they decided that only prisoners serving short duration of imprisonment should be allowed to vote. Likewise, the UK government also decided that those who are in the community on a temporary license would be able to vote in the UK parliamentary elections, as in the Indian Constitution UK also recognizes adult suffrage as the foundation stone of free and fair elections though they also abide by certain limitations which are necessary to prevent criminalization of the electoral process to reach the goal of free and fair elections. 

In countries like Austria, Hungary, Russia, UK, prisoners cannot vote. Countries like France, Germany, Italy, Netherlands, etc allow most prisoners to vote. And in countries like Finland, Spain, Sweden, Ukraine, etc all prisoners can vote. 

Article 9 of the Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention or exile”, Article 21 of the same declaration provides that “everyone has the right to take part in the government of his country, directly or through freely chosen representatives” it also guarantees universal and equal suffrage and equivalent free voting procedures. The United Nations Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules), in 1955 had already defined the purpose of imprisonment in Rules 3 and 4, and what treatment must be given to them under Rule 5. Rule 3 of the rules of general application reads that “Imprisonment and other measures which results in cutting off an offender from the outside world are affective by very fact of taking from the person the right to self determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation”. Again Rule 4 states that “The justification of a sentence of imprisonment or similar measure deprivative of liberty is ultimately to protect society against crime. This cannot be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the person is not willing but able to lead a law abiding and self supporting life”. Moreover, Rule 5 states that “The prison regime should seek to minimize any difference between the prison life and life at liberty which tends to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”. 

Therefore in international society as well there is a distinction of opinion in this regard, but almost every nation works on the principle of human rights established by the international conventions and agreements and acknowledges the concept of free and fair election through the process of universal adult suffrage and the other rights required for a democratic function of a country following its principles. We could see many countries allowing prisoners to vote during their sentence and many other countries imposing some limitations on their right to cast their vote based on the tenure of sentence or the nature of crime committed by such person. 

Although all these countries' statuses can set an example but cannot make India to be bound to follow such rules.  Like many other countries, our Constitution also provides various safeguards to the inmates and protects their life and liberty with reasonable restrictions as required to be imposed, but it does not secure, rather snatches their essential though not the fundamental right to choose who will rule them. It is not possible and in no way desirable to provide this same right to every inmate, but it may give serious trash to human rights if prisoners who are still under trial and their convictions are yet to be proven are not allowed to make their choice as this (though have not till now being noticed as such) may lead to misutilization of powers by those whom we are supposed to elect, by detaining opposition voices as and when required for the time being to satisfy their political motives. 

Therefore this deviates from the goal of democracy which says “Government of the people, by the people” and hence definitely not resulting “for the people”. 

Though the purpose of disenfranchisement is noble to the extent it prevents criminalization of the electoral process, at the same time it could be misused to deprive citizens of their constitutional right of voting which could ultimately affect other rights and even be a threat to the fundamental rights. But looking at the present status of Bharat many including the courts have expressed their views in negative due to the lack of infrastructural facilities and other social and political problems prevalent in India for which it would need some time to be into such maturity to make reforms in that field.

Edited by Siddhant Sharma