The Supreme Court on Monday decided to examine a petition challenging a provision in the election law that imposes a blanket ban on under trials, persons confined in civil prisons and convicts serving their sentence in jails from casting their votes.
A Bench led by Chief Justice of India U.U. Lalit issued notice to the Union of India, Ministry of Home Affairs and the Election Commission of India on a petition filed by Aditya Prasanna Bhattacharya, a student of National Law School of India University, Bengaluru, who said that while convicts out on bail could vote, under trials, whose innocence or guilt has not been conclusively determined, and those confined in civil persons were deprived of their right to vote.
Mr. Bhattacharya, represented by advocate Zoheb Hossain, argued that Section 62(5) of the Representation of the People Act, 1951, mandates that “no person shall vote at any election is 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”.
Mr. Hossain contended that the provision arbitrarily, through the use of “excessively broad language”, disenfranchises a large segment of the population of the country.
The latest National Crime Reports Bureau (NCRB) report of 2021 shows that a total of 5,54,034 prisoners were confined as on December 31, 2021 in various jails across the country. The number of convicts, undertrial inmates and detenues were reported as 1,22,852, 4,27,165 and 3,470, respectively, accounting for 22.2%, 77.1% and 0.6% respectively at the end of 2021. The number of undertrial prisoners has increased from 3,71,848 in 2020 to 4,27,165 in 2021. A hike of 14.9%. Uttar Pradesh has the maximum number of undertrials (21.2%, 90,606 undertrials) in the country followed by Bihar (13.9%, 59,577 undertrials) and Maharashtra (7.4%, 31,752 undertrials) at the end of last year.
The petition said that “denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values… Denying the right to vote does not comply with the requirements for legitimate punishment”.
It said the yardstick of confinement in a prison to disenfranchise persons generates several anomalous and shocking consequences. One of them is that even a judgment-debtor (a person who has not paid his debt despite a court verdict) who has been arrested and detained in a civil person is deprived of her right to vote. Detainment in civil prisons is unlike imprisonment for crimes. Robbing a person confined in a civil prison of the right to vote is pplainly discriminatory.
The ban lacks reasonable classification based on the nature of the crime or duration of the sentence imposed unlike in countries like South Africa, United Kingdom, France, Germany, Greece, Canada, etc. “This lack of classification is anathema to the fundamental right to equality under Article 14 (right to equality),” the petition pointed out.
Again, Mr. Bhattacharya highlighted, if a convicted person can vote if she is out on bail, why is the same right denied to an under trial who is not yet found guilty of a crime by a court of law.
“It cannot be conceived how the provision, which deprives prisoners of their right to vote, has any nexus at all with decriminalisation of politics, which is concerned with the right to contest of candidates with criminal antecedents,” the petition questioned the logic behind the election law.
The right to vote is a constitutional right under Article 326 of the Constitution.