For a more inclusive ballot

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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