Voting Rights of Prisoners

Jayam Jha & Pooja Rajawat

27 July 2022 10:04 AM GMT

  • Voting Rights of Prisoners

    On June 17, the Bombay High Court came up with a judgement rejecting the plea filed by two of the sitting Maharashtra legislative assembly members, who are currently in judicial custody, wherein it denied to grant relief by disallowing the members to vote in the elections for Maharashtra Legislative Council, which were being conducted on 20th June. The impugned judgement has to be...

    On June 17, the Bombay High Court came up with a judgement rejecting the plea filed by two of the sitting Maharashtra legislative assembly members, who are currently in judicial custody, wherein it denied to grant relief by disallowing the members to vote in the elections for Maharashtra Legislative Council, which were being conducted on 20th June. The impugned judgement has to be analyzed in light of Section 62(5) of the Representation of the People Act, 1951. It says:

    "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."

    The term 'election' is defined under Section 2(1)(d) of the act, wherein elections to the upper house of the parliament i.e., Rajya Sabha and the Legislative Council of the states are also included within the ambit of the term election for the purpose of this act. This signifies that when section 62(5) is read with section 2(1)(d), the obvious imputation is that the members of Lok Sabha and the Legislative Assemblies of different states are barred from voting for elections to the seats of Rajya Sabha and the Legislative Council of the concerned states respectively.

    Constitutional Status Of The Right To Vote

    Before analyzing the prospect of the voting rights of the elected representatives for indirect elections to the upper houses, the nature and status of the right to vote in general need to be understood. Prima facie, on a literal interpretation of Part III of the Constitution of India, which talks about fundamental rights, there is no explicit mentioning of the right to vote under this part. The principle of adult suffrage is enshrined under Article 326 of the constitution of India wherein the right to be registered as a voter for elections to the House of the People and to the Legislative Assembly of their respective states has been conferred upon every Indian citizen, who is not less than eighteen years of age, subject to disqualification either under the constitution or under any other appropriate legislative statute. In People's Union for Civil Liberties (PUCL) vs Union of India, the Supreme Court recognised the constitutional status of the right to vote. This was further reiterated in Rajbala vs State of Haryana wherein it was clarified that adult suffrage or the right to vote and 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 qualifications and disqualifications to be a voter and to contest elections, it testifies the fact 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 how the judgment of PUCL was interpreted in Kuldeep Nayar vs Union of India, we find that the court was hesitant in extending constitutional status to the right to vote. Though, it didn't overrule the PUCL judgment, a rider was added that right to vote has a constitutional status only to the extent that it leads to right to have a free and fair election.

    The preamble to the Constitution of India envisions the Indian nation-state to be a 'democratic republic'. A democratic form of government is best defined as a government by the people, of the people and for the people. The Black'sLaw dictionary defines a 'republican government' as a "government by representatives chosen by the people". Democracy and free and fair elections are a part of the basic structure of the constitution and for elections to be a free and fair exercise, a guarantee to right to vote to those who constitute the electorate is a necessary precondition. However, the recognition of the right of the voters to vote might not be in itself sufficient for elections to be free and fair but the creation of a condition where voters can ever exercise their electoral right with a free will is a sine qua non. As soon as the principle of free and fair election and democracy become a part of the basic structure, giving similar stature to voting rights should be the natural corollary. Thus, the ambiguity regarding the status of the right to vote must be cleared and giving an expansive meaning to it will strengthen only the democratic ethos of the country.

    Indirect Elections – A Ground For Intelligible Differentia?

    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 cannot become an absolute right as article 19(2) itself provides scope for imposing certain reasonable restrictions on the exercise of the rights guaranteed under article 19(1). Even further, article 326 confers power upon the legislature to impose certain restrictions on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice.

    In an election, where the elected representatives are directly elected by the people, voters cast their votes in an individual capacity and their vote represents their will. But in an election for the members of Rajya Sabha and the Legislative Council, people express their preferences through their elected representatives. These elected representatives when exercise their right to vote, they vote not just in their personal capacity but they reflect the will and aspirations of general masses.

    Article14 of the Constitution allows for reasonable classification for the purpose of legislation, provided that these two conditions are satisfied: (i) that the classification has its foundation on an intelligible differentia and (ii) that such differentia has a reasonable and rational nexus with the object which the prescribed statute wants to achieve. The fact that in the election for the members of Rajya Sabha and Legislative Councils, the voters vote on behalf of all those whom they represent in the lower house, provides for an intelligible differentia between such elections where people directly vote and where they vote indirectly.

    Another ground, which can be a basis for lifting the embargo of section 62(5) for indirect election is the quantitative difference of voters in both of these elections. To allow the prisoners to vote in direct elections, the state will have to make logistical and administrative arrangements at a mammoth scale. In Ankul Chandra Pradhan vs. Union of India, one of the justifications given by the court to uphold the constitutional validity of section 62(5) was that in order to permit every person in prison to vote, the state will have to make large scale security arrangements and deployment of police forces and given the under availability of police forces, it seems to be a rather far-fetched and implausible idea to allow all the prisoners, the right to vote. This constraint will not be a hindrance in making arrangements for providing access to voting rights to voters in indirect elections as the number of voters would be so less that infrastructural and security arrangements can be easily deployed.

    Another ground of justification for section 62(5) is that it is intended to uproot the menace of criminalization of politics. While the large influx of people with criminal antecedents in the electoral politics is a peril to Indian democracy, the policy to bar prisoners to vote has not able to achieve the desired result of keeping people with criminal charges away from electoral politics. Thus, the classification between prisoners and those who are outside the prison while deciding who will have the right to vote has failed to achieve the intended objective. Also, there seems to be a logical fallacy in the legislative policy allowing people with criminal antecedents to contest elections but denying the right to vote.

    In the present case, the court stated that the motive behind putting the concerned MLAs, who constitute a part of the electoral college, behind the bars was not to specifically prevent them from taking part in the process of election but they were under incarceration since a long time in unrelated cases. However, the oath, which the members of parliament and the members of legislative assembly take after getting elected, confers upon them some obligations and responsibilities, which amongst other things also includes the fulfilment of constitutional duties. Section 62(5) by prohibiting the members of parliament and members of legislative assembly to vote in the election for Rajya Sabha and Legislative Council members, restraints them in the discharge of their constitutional duty.

    Therefore, to ensure that the statutory embargo of section 62(5) should not be an impediment for the MPs and MLAs in the discharge of their duties and exercise of their rights to ensure that it should not prejudice the rights of the citizens, whom these elected representatives represent, partially lifting the embargo of section 62(5) for indirect elections should be put for consideration.

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