Negation of voting rights for undertrial prisoners: Unjust exclusion

The law does not distinguish between civil and criminal imprisonment. It permits convicts out on bail to vote, not undertrials in jail.

ByJustice J Chelameswar | Arghya Sengupta

Published May 11, 2024 | 8:00 AMUpdatedMay 11, 2024 | 8:00 AM

Juveniles in prison

Why should undertrial prisoners not be given the right to vote?

As India goes to the polls, all eyes are trained on one number—voter turnout. Who is coming out to exercise their franchise? The young and the old, the employed and the unemployed, students and professionals—but certainly not prisoners, numbering over 5.7 lakh.

Section 62(5) of the Representation of the People Act, 1951 expressly prohibits all persons confined in a prison for any reason or in the lawful custody of the police from being able to vote in any election.

It does not differentiate between undertrials and convicts, let alone between convicts who have committed minor and grave offences. The Act does not distinguish between civil and criminal imprisonment. It permits convicts out on bail to vote, not undertrials in jail.

It may be noticed that under the scheme of the RP Act, a person convicted of certain classes of offences and directed to suffer imprisonment for a period not exceeding two years, though serving his sentence in prison, is not debarred from contesting an election. This is anything but rational!

Reasonable distinction

Anukul Chandra Pradhan shared this view. He approached the Supreme Court with a simple plea—that the provision be struck down as it violates a range of fundamental rights. However, the court upheld the provision, finding that a reasonable distinction can be made between those inside and those outside prison.

The court held that it is reasonable to deny the former class the right to vote if the intent is to keep criminal elements out of electoral politics (1997) 6 SCC 1. The judgment requires a reconsideration for many reasons.

While decriminalisation of politics is undoubtedly a desirable objective, it cannot be said that section 62(5) achieves it in any way. The absurdity becomes even more apparent when contrasted with the disqualification of candidates standing in an election.

A reading of the various disqualifications for candidates makes it clear that being in jail as an undertrial or for committing a minor offence usually does not disqualify a person from contesting elections. It may be noticed that under the scheme of the RP Act a person convicted of certain classes of offences and directed to suffer imprisonment for a period not exceeding two years, though serving his sentence in prison is not debarred from contesting an election. This is anything but rational!

Confinement vs conviction

Section 8 classifies offences into three categories based on their nature and gravity and the period of imprisonment to which the convict has been sentenced. Persons convicted of offences under section 8(1) are disqualified from candidature for a period of six years over and above the term of their imprisonment.

Those convicted of offences under section 8(2) are disqualified for a period of six years if their conviction results in a six-month sentence. Section 8(3) provides for a six-year disqualification for convictions for all other offences if the sentence of imprisonment is not less than two years.

Curiously, the bar on contesting elections for those with criminal antecedents is based not on confinement but on conviction, and there is also a gradation based on the duration of imprisonment. Simply put, a person in jail can contest elections but not vote in them.

This reading is further bolstered by the fact that physical presence is unnecessary for either submitting nominations or campaigning for office. We know of politicians who never submit their nominations themselves and never have, as a matter of superstition or habit.

Poll candidature and franchise

If a person in prison accused of an offence can stand for an election, why can a person who is, say, in prison for their inability to get bail not be able to vote for an election?

The decriminalisation of politics is about the criminal and financial records of candidates and elected representatives. It aims to keep candidates with serious criminal antecedents out of the electoral process.

This is done by either making the electors aware of such antecedents or by disallowing such candidates to contest elections. Barring a person imprisoned from exercising their franchise has no effect on decriminalising politics.

Hypothetically, even if decriminalisation can be achieved by keeping criminals from the polling booths, it is illogical to extend the ban to undertrials or those in civil prisons. For the latter class, it is little but poor drafting. People are sent to civil prison for failing to repay debts, honour a court’s decree, etc. It has nothing to do with criminality.

For the former class, i.e. undertrials, the provision fails to classify reasonably. It is worth noting that the law clearly states that it does not apply to those in jail under preventive detention. This exception only ensures that those who have not committed any crime are not deprived of their right to vote.

Innocent till proven guilty

If this is the case, then this exception should also extend to undertrials – who have merely been accused of a crime – nothing has been proven against them. This situation exists because section 62(5) uses confinement, not conviction, as the yardstick for disenfranchisement. So, a terrorist who is preventively detained can vote, but a thief who is unable to get bail cannot.

In the United Kingdom, in the case of Hirst v UK (No. 2) (2005) ECHR 681, the European Court of Human Rights held that the blanket ban imposed by Section 3 of the Representation of People Act 1983 (UK legislation) on a prisoner’s right to vote was disproportionate because it was “general, automatic and indiscriminate.”

In Canada in 1992, the Canadian Supreme Court in Sauvé v Canada (no.1), (1993) 2 SCR 438 struck down the disenfranchisement of all prisoners in Canada for being too widely drawn. Following this judgement, the Canadian Government decided to amend the law to ensure constitutional compliance.

This amendment restricted the ban to prisoners serving a sentence of two years or more in a correctional institution. But in its decision in Sauvé v the Attorney General of Canada (no.2), [2002] 3 SCR 519, the Supreme Court struck down the provision again.

In both these decisions, the Court cited failure to satisfy the proportionality test and failure of the Government to establish a rational connection between the denial of the right to vote and its stated objectives.

In India today, we have a choice. Either we extend the right to vote to prisoners, like other democracies have. Alternatively, if we intend to be stringent on decriminalisation and adopt a “take-no-prisoners” approach, then those in prison should not be allowed to contest elections either. The present absurdity must end.

(Justice J Chelameswar is a former judge of the Supreme Court of India. Arghya Sengupta is Research Director at the Vidhi Centre for Legal Policy. Views are personal.)