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Updated: August 8, 2013 02:27 IST

For a more inclusive ballot

Anup Surendranath
Comment (21)   ·   print   ·   T  T  
The Hindu

While denying voting rights to undertrials contradicts the principle that a person is innocent until proved guilty, disenfranchising convicts will aggravate their alienation from society

The Supreme Court’s decision last month in Chief Election Commissioner v. Jan Chaukidar has attracted significant attention for its perceived potential to address the criminalisation of politics. Justices A.K Patnaik and S.J. Mukhopadhaya ruled that since one of the conditions to be a candidate under The Representation of the People Act, 1951 was that the candidate should be eligible to vote, even those in lawful custody of the police could not contest elections. They reached this conclusion because it is established law in India that individuals in lawful custody of the police, undertrials and those serving a sentence of imprisonment after conviction cannot vote. I believe this reasoning of the Supreme Court is untenable in law; but my purpose here is to critically reflect on the legal position in India that individuals in the lawful custody of the police cannot vote.

Statutory right

There has been significant debate in our constitutional jurisprudence on the nature of the right to vote. The dominant position, established through judgments of the Supreme Court, is that the right to vote is not a fundamental right or a constitutional right but is only a statutory right. Being a statutory right, the legislature can determine the terms on which the right to vote is to be enjoyed by the people of India subject to Articles 325 and 326 of the Constitution. One such condition is to be found in Section 62 (5) of the RP Act , which explicitly provides 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.” And it is this provision that the judges in Jan Chaukidar relied on to come to the conclusion that those in police custody cannot contest elections because they are not eligible to vote. It is very surprising that even discussions critical of the Supreme Court verdict have focussed only on the possibility of abuse by political actors to prevent potential candidates from contesting elections. There has hardly been any discussion on the prior question about why those detained in policy custody should be denied the right to vote.

The Indian position on the issue of voting rights for prisoners is among the most regressive. India denies voting rights to not only individuals convicted of a crime and serving a sentence in prison, but also to undertrials and even those in police custody. The constitutionality of Section 62(5) of the RP Act was challenged before the Supreme Court in Anukul Chandra Pradhan v. Union of India (July 1997) as being violative of the right to equality and the right to life under Articles 14 and 21 of the Constitution. Through a unanimous opinion authored by the late Chief Justice J.S. Verma, the Supreme Court rejected this challenge in a rather unconvincing manner. Undoubtedly, Article 14 permits the state to make classifications and accord differential treatment according to the same. However, the restriction on the state is that these classifications must be reasonable and must have a rational connection to the objective being sought to be achieved. The Supreme Court took the view that it was reasonable to deny voting rights to convicted prisoners, undertrials and those in police custody because it was being done to curb the criminalisation of politics. Further, it took account of practical considerations and ruled that the additional resources that would be required in terms of infrastructure, security and deployment of extra police forces were legitimate justifications in denying the right to vote to prisoners and those in custody. The court was of the view that a prisoner was “in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment [and] cannot claim equal freedom of movement, speech and expression with the others who are not in prison.”

Clearly, one of the major concerns of the court was the criminalisation of politics but it is difficult to see how the denial of voting rights is important or relevant in this regard. Criminalisation of politics has to be addressed by ensuring that those with a criminal record do not contest elections and it has very little to do with who votes. Even assuming the reasons cited by the Supreme Court are convincing, it is rather puzzling that the court did not consider it necessary to distinguish between convicted prisoners, on the one hand, and undertrials and those in custody, on the other. We cannot trumpet our commitment to the principle of “innocent until proven guilty” in our criminal justice system and, at the same time, presume undertrials and those in custody to be guilty as far as voting rights and decriminalisation of politics are concerned. Fairness would demand that we acknowledge the fact that undertrials and those in custody are yet to be found guilty while determining the contours of the right to vote. Bringing undertrials and those in police custody within the umbrella of “criminalisation of politics” ignores the harsh reality that a vast majority of undertrials languishing in Indian jails are poor and belong to the marginalised sections of society. It is rather disappointing that the Supreme Court found the “resource crunch” argument to be relevant while determining such an issue. Constitutional protection of civil liberties cannot be held hostage to considerations of practicality.

Negating citizenship

There is significant intuitive appeal to the Supreme Court’s reasoning that a convicted prisoner serving a sentence is in prison due to her own conduct and it is therefore reasonable to deny her the right to vote. While the court‘s view that a prisoner cannot claim the same liberties as those who are not in jail is certainly justified, it does not mean she is no longer entitled to any of the constitutional guarantees. The question that arises, therefore, is the basis on which the right to vote is denied to convicted prisoners and the answer tends to point to a certain moral evaluation of criminals. The right to vote lies at the very heart of the idea of full and effective citizenship and by denying voting rights to prisoners, the state effectively negates their citizenship status. Prisoners must have the right to exercise their voting rights, just like anyone else, and influence the electoral process. By virtue of being incarcerated with very little access to the outside world, this opportunity to participate in the political process is integral to prevent further alienation from society. While the stated goal of our criminal jurisprudence is to reform prisoners and reintegrate them into society, the denial of voting rights to prisoners treats them as outcasts.

In the comparative context, India’s position is among the most regressive because it denies voting rights to undertrials and individuals in police custody. In all other jurisdictions, where there have been major debates on prisoners’ voting rights, the focus has been on the scope of voting rights for those who have been convicted. The United States has the most restrictive laws on the impact on voting rights once convicted of a felony. Federal laws do not regulate the issue and the States have adopted different approaches. While a convicted felon may lose her right to vote permanently in 12 States even after completing her sentence, parole and probation, there is an unrestricted right to vote for felons by absentee ballot while in prison only in Vermont and Maine. The 36 other States allow felons to vote at different stages after completing their sentence. However, the Constitutional Court of South Africa, the Supreme Court of Canada and the European Court of Human Rights have all ruled that a blanket ban on voting rights for all convicted prisoners is discriminatory and violates their dignity.

A commitment to universal adult franchise cannot mean the exclusion of those in custody, undertrials and convicted prisoners. The justification that is used to deny voting rights to convicted prisoners certainly has no application in the context of those in custody of the police and undertrials. As far as the voting right for convicted prisoners during incarceration is concerned, we must be aware that alienating them from the political process because of a certain misplaced moral evaluation of convicts has no place in modern democratic societies committed to resettlement and rehabilitation. And as a country we would do well to remind ourselves of what Winston Churchill, as Home Secretary, said in the House of Commons in July 1910: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” We must certainly prevent criminalisation of politics but it is just as important not to use the denial of voting rights to those in custody and in prison as the means to that end.

(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi)

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the jurisprudence shown by the honable court is exemplary..India is waiting for such strict law in place so that any crony,malafide cannot affect the electoral system quality .well it is morally as well practically necessary for any democratic sovereign country. It will protect the country from being influenced by unsocial elements in the society and also acts as a deterrent for many candidates to engage themselves in such activities which causes them lose their eligibility. So effect of this judgement is far reaching which will bring more transparency and accountability on both sides of the electoral system.

from:  Ashish Kumar Singh
Posted on: Aug 11, 2013 at 07:26 IST

I don't think voting in an election is the only thing that affirms our
status as a citizen and as our courts have held it is a statutory right
which can be taken away under certain circumstances.
Further has anyone thought about postal ballots for persons who are
incarcerated; it will surely take care of all those "practical"
concerns.

from:  vandana
Posted on: Aug 10, 2013 at 12:55 IST

Ridiculous !!
Person in prison does not have the freedom of movement. Will the author
support that too? This would have been a good article in 1947.

from:  Sandeep
Posted on: Aug 10, 2013 at 00:52 IST

Very flawed logic used by author to justify rights to prisoners and undertrials.
Moreover considering prisoners I e convicted and undertrials on the same platform is
gross misjudgement.
The basic principle of imprisonment is deterent factor that many times restrict animal
instict of humans which each of us have more or less. If deterent factor is removed or
diluted then the purpose of distiction between normal citizen and prisoner or
undertrials does not remain.
People like this author may tommorrow came with more rights for prisoners as to
make them equals with other citizen. Apart from this general clarification the court
interpretation if considered in he contecst of indian politics and its condition, it
becomes illogical and un-professorlike analysis of the matter.
I hope the better sense pevails and bring some sanity to the citizens of democratic
india.

from:  anil
Posted on: Aug 9, 2013 at 04:56 IST

Article brings about a point which should be considered but we have to
ponder if means is more important than the end.Author wants Supreme
court to use better means ,we accept the point but when the end carries
such a dominant and burning issue we can neglect the means at times.We
will have our time to bring about that issue too in future.

from:  Vaibhav Sharma
Posted on: Aug 8, 2013 at 22:48 IST

It is all nice to all the time talk about how strictly we should
follow democratic laws and norms in letter & spirit. This is the
easiest thing to do, but given the way & what is happening in this
country there is a need to draw a line somewhere even if it is at the
cost of some sacrifice from some sections of the society. we can all
the time talk about SC overreach with some judgments, but common man
today is fed up with the self serving political class and the
bureaucracy. I am sure there are more criminals MLAs and MPs than the
number of under-trials who are falsely implicated!!!

from:  Raman SK
Posted on: Aug 8, 2013 at 21:55 IST

This refers to article “For a more inclusive ballot”. Every right
comes with a duty; voting rights are conferred by the constitution. If
criminals are barred from voting in election, then it is fully
justified. A criminal by virtue of his crime loses the right to vote.
For undertrails, barring them from voting in elections is not
desirable in a democratic setup .The objective of all these is stop
the criminalization of politics. Honble Supreme Court has barred
undertrails from contesting elections, going by logic if one is
allowed to vote then he should also be allowed to contest. However, if
undertrails are allowed to contest, it will be against the prevalent
practice in the society (For example, even if a small worker in an
unorganized is booked in a case (even in a false one), though not
proven guilty in any court, his employer will simply terminate him and
if he is acquitted, chances of taking him back in to job are
absolutely nil)

from:  K NARSINGH RAO
Posted on: Aug 8, 2013 at 21:01 IST

We are born to live not leave from this world. If u tell a single innocent should not suffer but no problem if thousands culprits go unpunished. Sir, we are living in 111 crore population. .. don't bring old and outdated principles. . Your article is highly unrealistic for present time..

from:  Dr Shrishail
Posted on: Aug 8, 2013 at 19:36 IST

"Decriminalization of politic" the opinion you gave is right..but there
was not a single point which justify how to do it in our country in
present scenario..According to Indian Constitution those who are
eligible to vote to are eligible to contest election... Dont you think
its better to mark a line between them. I want to say that under trials
can cast their vote but cant contest election.. It will help in
decriminalization in politics.

from:  chandra shekhar
Posted on: Aug 8, 2013 at 18:38 IST

yes,the viewpoint of the writer is appreciable.It can not be respected
in a democracy like ours where we have the right to vote under the
priciple of universal adult franchise as one of the plank of
institutionalising democracy to hide such a lamentable feature of
denying voting rights to convicted persons or undertrials or even
those who are under custody.Yees criminalisation of politics is a big
enough issue but it can not allow to put restriction on such a basic
right of a democracy,other ways might be found to curb criminalisation
of politics.Also contesting an election and voting in it are different
issues our law-makers might try to look at seperating this.

from:  vijay
Posted on: Aug 8, 2013 at 17:58 IST

Criminals are incarcerated for breaking state laws. It is moral duty of
the state to prevent such persons in deciding the representative. It is
morally undesirable to extend such rights to such persons. When
criminals are allowed all these benefits why we want judiciary and other
facilities? It is because it has a deterrent force. Nobody thinks too
much while killing chicken but does while killing other person mainly
because of the fear of prosecution.

from:  karthik
Posted on: Aug 8, 2013 at 17:54 IST

His views and analysis of ‘right to vote’ are unconvincing. He concludes his objective by saying that “we must certainly prevent criminalisation of politics’. He is sure that this “has to addressed by ensuring that those with criminal record do no contest elections”. Further, he admits that the recent Supreme Court judgment has a ‘potential’ to address the issue. He also justifies “the court’s view that a prisoner cannot claim the same liberties as those who are not in jail”. He knows that the court’s conclusion, that “those in police custody cannot contest elections”, is based on the existing rules under 62(5) of the RP Act. The Supreme Court had rejected challenges against the section in the name of Articles 14 and 21 of the Constitution. In these circumstances, the author’s suggestion to restore ‘voting rights to prisoners’ does not look wise. It is clear that, when once Anup’s idea is accepted, there would be no bar for convicts and other prisoners to contest elections. At least, this is no opportune time to do it. He could have argued not to put in jails the “innocent until proven guilty”. It is not by granting voting rights we try “to reform prisoners and reintegrate them into society”. It is again the author’s subjective view that criminalisation of politics has ‘little to do with who votes’. It is the voter’s mindset that influences his/her preference to a candidate. One needs to be an integral part of the society to enjoy the right. Whether ‘the mood and temper of the public’ as in Churchill’s quote is applicable here is another matter.

from:  P.R.V.Raja
Posted on: Aug 8, 2013 at 16:08 IST

How this was going to work.In Andhra a member of legislative assembly
who was taking trails for 20 years was elected as member for
legislature thrice.... I don't think these all work... after a case
was filed upon a person he takes bail and enjoys his life as
usual...The court takes this case for 20-30 years in this span he can
contest elections 5 times... if we think about what court says. if 2
person were contesting elections.he & his counter part will fail cases
on each other so both are disqualified. so then it too not going to
solve the purpose. it will create a new problem which courts are
facing i.e increasing cases... burden on courts.. if judgements are
fair & quick there would be no problems .. . .. .. . .. . .
.... . . . . . . .. . . .. .. ....................

from:  mahesh
Posted on: Aug 8, 2013 at 15:41 IST

Good persons will enter in to politics only by this decision.

from:  T.gunabalan
Posted on: Aug 8, 2013 at 15:12 IST

It is very a important decision on today's politics

from:  T.gunabalan
Posted on: Aug 8, 2013 at 15:06 IST

The article has a substance in it.Right to vote,though not a fundamental right,is a statutory right which gives a voter a sense of Indianess.If its being denied to anyone, its natural and psycological that the person will feel alienated with the society which eventually is possible of criminalizing his moral thinking instead of redirecting it in a civil path.
If the reason is the lack of police infrastruct for granting them the same,scientific and modern approach of casting of a vote,like e-ballot can come to the rescue.

from:  Suraj Pathak
Posted on: Aug 8, 2013 at 14:55 IST

In my opinion, "denying a convicted prisoner the right to vote during
the period of his imprisonment" is justified, because if the person
has been declared unfit to be a part of the society (by imprisoning
him), then how can he be considered fit for taking decisions for the
society ( by voting and thereby helping in the election of the leader
of the society). However, I do feel that revoking the voting rights of
under-trials and individuals in the police custody is unjustified and
must be amended under the principle as stated above, that an
individual is "innocent until proven guilty".

from:  Nitesh Tewari
Posted on: Aug 8, 2013 at 14:15 IST

Denying the right to vote for the prisoners especially the ones
undertrial is a process of seclusion of the prisoners from the
mainstream society. This according to Emile Durkheim would lead to
suicide. Not absolutely in the terms of Durkheim, this is the suicide of
the inclusive politics in India. This will lead to more of the agony and
ignorance of the prisoners towards the political system of India. And
the process of resettlement and rehabilation would be a utopia for the
prisoners.

from:  Raja
Posted on: Aug 8, 2013 at 13:02 IST

Constitutional protection of civil liberties is held and should be
held hostage for practical considerations, though its misuse should be
limited.
For example: to maintain law and order in times of communal tension ,
civil liberties have to be curtailed.
The cost associated with granting convicts serving sentences the right
to vote cannot be sidelined because its the public money which is
involved and its the public whom they have betrayed.
Though I feel under trials , under custody people and even convicts
charged of minor sentences should be given the chance to vote if any
easy and cost effective method to cast their vote is devised.
Its a very simplistic assumption to make " by denying voting rights to
prisoners, the state effectively negates their citizenship status",
neither its not permanent denial nor citizenry is all about right to
vote.

from:  Vikrant Singh
Posted on: Aug 8, 2013 at 09:44 IST

The article is spot on, because the fundamental question of why should a person arrested
under mere suspicion or in judicial custody awaiting to be charge sheeted be denied the right
to vote, and now the right to contest as well. The biggest irony in this process is the rich and
influential people who are able to move a bail petition and secure a bail, are able to vote and
will also be able to contest elections. So another way of filing a review petition on this is to
ask, why differentiate between those on bail and those still in custody because both are
responsible for the same set of actions ?

from:  Gajamani G
Posted on: Aug 8, 2013 at 08:51 IST

If I am a prisoner in any of the Jails, the first thing I would be
looking for is decent food, a bit of hygiene and if possible, some
space. The lesser we talk about it, the better. After that comes the
question of Voting. First of all, improve my living conditions. Then, we
can talk about democracy and stuff:)

from:  Abhishek Pandey
Posted on: Aug 8, 2013 at 08:35 IST
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