India has the world’s largest democracy where there is multi-party parliamentary system and free elections which give right to vote to every adult citizen of India. Recently, Hon’ble Mr. Justice KM Joseph, who is heading the Constitution Bench, hearing petitions seeking independent mechanism to appoint Election Commissioners in Anoop Baranwal v. Union of India, WP(C) No. 104/2015 expressed strong disagreement with the stand of the Election Commission of India that the right to vote is a mere statutory right and not a constitutional right. While highlighting the words “shall be entitled to be registered as a voter at any such election” of the Article 326 of the Constitution, Justice Joseph remarked that the right to vote emanates from the Constitution itself. This bears testament to the significance of the right to vote by citizen of India irrespective of his criminal antecedents. Per contra, the legal system in India excludes prisoners from the voting rights. This shows that the checks and balances of democratic rights or the human rights differ for the prisoners in temporary imprisonment and police detention eliminate their constitutional rights. However the contemporary societal notion for prisoners should be the reformative structures but here the Indian legal system deprive the citizens even the undertrials from their constitutional voting rights.
Article 326 of the Constitution of India embodies the right to vote in the following words-
“The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; but is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election”
Furthermore, the Article 21 of Universal Declaration of Human Rights (UDHR) and Article 25 of International Covenant on Civil and Political Rights (ICCPR) supplement equal voting rights of the citizens so that they can express their will to elect their representative. It vividly states the description “Everyone has the right to vote without any distinction on the basis of race, caste, color, status, language, religion, sex, political or any other opinion, national or social origin.”
Similarly, there are other various international conventions like The American convention, European convention and the African chatter on the human rights in support of the voting rights which states the freely participation of every individual in the government election. Countries like Europe, Switzerland, Finland, Norway, Denmark, Ireland, the Baltic States, and Spain already allow prisoner voting. This should be seen as the reformative, rehabilitation and reintegration to the society mainly for the prisoners as mentioned in the Hirala Mallick vs. State of Bihar (1977).
Here the question arise that if a person imprisoned is obligated to pay taxes then Why he is deprived of his Voting rights? (Pilkington 2018) This gives a clear view that an individual does not have his absolute citizenship rights. This practice of barring individuals from their voting rights who are convicted for the crime known as Felony disenfranchisement. This Deprivation comes from an archaic concept which is known as civil death. This issue of disenfranchisement in India ought to be dealt with the Section 62(5) of Representation of people Act, 1951 which prohibits the voting rights of the convicted person. Elaborately, with the Supreme Court Judgment in the State of Andhra Pradesh vs. Challa Ramkrishnan Reddy (2000) explains that the person convict or under trial will also deprived of their constitutional rights.
There are divergent views of the High Courts in respect of voting rights of undertrial. The Orissa High Court, in Sri Ramesh Chandra Jena @ Ramesh Jena versus State of Orissa & Others (2010), allowed a member of the state legislative assembly to exercise his franchise by way of participating in voting process for Rajya Sabha elections. In Banwari Lal Kushwaha versus State of Rajasthan (2016), however, the Rajasthan High Court refused to permit a member of the assembly, who was in prison and under police custody, to vote in the Rajya Sabha elections. Further, in the case of Minister of Home Affairs vs. NICRO where they emphasized on the democratic supremacy where right to vote was used to entrench and marginalize the majority of people of our country which is the progressive idea. Whereas, according to the records of criminal justice system, maximum number of dalits, tribals and other weaker section people are imprisoned in the jails and majority of them are undertrials. Delay in the judicial procedures affecting the country’s unity which has been up bring with the same legislation in the past history to protect the rights of these sections.
However, critically analyzing the issue evidently proved the worse condition of prisoners. Already they are at the vulnerable stage where they are struggling with the conditions of Indian jail. Instead of making them to be alive by providing voting rights where they can practice the right of expression and be the part of our society. We are pushing them back with the denial of their rights and addressing them with civil death. The author strongly recommends the judicial system should intervene in constitutional or statutory rights of the prisoners who are in the temporary custody or the undertrial prisoners. As per the settled legal principle which mention that “A person is innocent until proven guilty”, this laid stress that the judiciary should differentiate among prisoners, undertrials and those in lawful police custody. Therefore, legislation should not be imposed with the direction to punish the violators, but there should be the reformative or rehabilitation practices in the prisons, so that being in a prison does not cease their human rights.
Understanding the prisoner a human being is a social responsibility and taking away such rights is the breach of a social contract which disrupts the rights of the person who are already struggling with their trials and delay in justice. The democratic culture brings equal and fair electoral rights but the arbitrary notion for prisoners does not allow them to enjoy equal rights in the confined state.
