Voting From Prisons

Prof G.S. Bajpai & Ankit Kaushik
12 April 2019 5:40 AM GMT
Voting From Prisons
Denial of voting rights to prisoners is an unreasonable restriction.
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On 19th March, the Delhi High Court issued notice to the Election Commission of India (ECI) in a PIL pertaining to the denial of voting rights to prisoners – both under-trials and convicts. Primarily, averments have been made by the petitioners on the grounds that Section 62(5) of the Representation of Peoples Act, 1951 (RP Act) is violative of Article 14, 19 and 21 in so far as it prevents a prisoner from exercising his right to expression (voting being a medium of expression as per the Apex Court in PUCL & ors. v. UOI (PUCL 2013)) and that it discriminates between those incarcerated and those out on bail or in preventive detention.

The principle of 'felony disenfranchisement' upon which s. 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. Where a provision debarred prisoners serving a sentence for more than two years from voting, the Canadian Supreme Court struck down the same 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 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 rights of prisoners – convicted or otherwise (for e.g. D.K. Basu, Sunil Batra, Francis Corallie 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 under-trials 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 institutionalized injustice.
To put the scale of this injustice into perspective we merely need to glance through some hard facts. Given the state of affairs of our criminal justice system – overburdened and understaffed; it is hardly surprising that two-thirds of all persons incarcerated are under-trials. As per the Prison Statistics 2015, there were 2,82,076 under-trials and 1,34,168 convicts incarcerated in various prisons across the country. Moreover, this figure does not include the statistically significant figure of those under lawful detention of the police on the days of the election.
Several institutional barriers stand in the way of the petitioners – many of which have been setup by the Supreme Court itself. Firstly, 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 species of the freedom of expression under Article 19(1)(a). Further, the reliance of the petitioners on Rajbala v. 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) judgement 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.
Secondly, the averment of discrimination between those confined in prisons and those convicted and out on bail or those in preventive detention has already been argued before the Supreme Court in the case of Anukul Chandra Pradhan v. UOI (1997). This argument was rejected on the ground that the object of the legislation is decriminalization of politics even though the judgment is silent on the point of how preventing under-trials or even convicts from voting will help avoid a 'criminalization of politics.' Ironically, under section 8(3) of the RP Act, a person convicted for an offence which carries imprisonment of under two years is eligible for contesting an election.
Thirdly, 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 restriction on the freedoms of the prisoners (for e.g. the 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 fundamental to the health our democracy.
Lastly, the argument of the petitioners that s. 62(5) of the R.P. Act places restrictions on the right to freedom of expression of the prisoners may hold weight. However, in view of the discussion above, the forum of choice for the petitioners, i.e. the Delhi HC may find itself institutionally constrained to order any substantive relief.
It is debatable whether denial of voting rights to prisoners comes under 'reasonable restriction' thesis of the judiciary. The impugned provisions of the RP Act seem flawed owing to the fact that they violate the basic fundamental right of Right to life. Right to life includes right to choose. The laws made in the parliament are equally applicable to prisoners. Therefore, all including those behind the bars, have the right to choose their representatives.
Dr. G. S. Bajpai is Professor and Chairperson, Centre for Criminology and Victimology at National Law University, Delhi. Ankit Kaushik is pursuing LL.M. from National Law University, Delhi.
This Article is first published in The Tribune.
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