INTRODUCTION
India is considered as the world’s “largest democracy” country. Election is celebrated as a festival in India, which can be evident from the recent incidents where the election rallies were conducted even during the COVID times. On every 25th January, we celebrate this day as ‘National Voters Day’. However, for a long time, we have denied the most fundamental right of suffrage to almost 4 lakh eligible voters. According to the ‘Prisoner Statistics India, 2018’, mentioned by the National Crime Record Bureau (NCRB), shows a total of 4,68,094 prisoners out of which 3,25,600 are those who were undertrials and 1,40,000 are convicts lodged across 1,339 prisons in India. The prisoners have been restricted from voting under Section 62 (5) of the Representation of the People Act, (RPA)1951, which reads as “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: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force”. Ironically, during the Assembly elections 2016, one in three MLAs have a criminal record. Interestingly, no law prohibits it.
It has been more than 70 years since the right to vote has been denied to prisoners. In this article, we will see why the legislation should amend the RPA Act.
HISTORICAL BACKGROUND AND THE JUDICIAL APPROACH.
RPA act came into force in the year 1951 with the aim to provide the norms, rules, and regulations of the free and fair elections to the respective houses of parliament and to the houses of the legislature of each state. Further, it also talks about the disqualifications and qualifications for the membership of those houses. Moreover, it also mentions the corrupt offenses and practices in connection with the offenses which are committed by some of the politicians which may include bribery or distribution of liquor, etc. against the votes.
Supreme Court of India, in the case of Anukul Chandra Pradhan v. Union of India (AIR 1997 SC 2814), rejected the petition seeking the right to vote for prisoners. The court while giving the judgment observed why such a ban was in place because of the following reasons (i.) Resource crunch as permitting every person in prison also to vote would require the deployment of a much larger police force and greater security arrangements. (ii) A person who is in prison as a result of his own conduct cannot claim equal freedom. (iii) To keep persons with criminal backgrounds away from the election scene.
ARGUMENTS AGAINST
The major arguments which are against this right are: – (i) Civil death should be part of the punishment. (ii) Prisoners have broken the social contract and have voluntarily put themselves outside the social order (iii)It Preserves the purity of the ballot box (iv.) Government has an obligation to those who obey laws to punish those who break laws (v.) To disallow those who have broken laws to engage in the political process shows how much respect society has for laws (vi.) Powerful moral symbol from the society that the convict’s behavior is unacceptable (vii) It will act as a deterrent.
ARGUMENTS IN FAVOR
The major arguments which are in favor of this right are: – (i) Civil death is outdated. (ii) Social contract cannot be negotiated away (iii) Undermines the democratic polity by denying the vote to a section of the population. (iv) Elected should not be allowed to decide the electorate. (v) Allowing convicts to vote will encourage respect for the law. (vi) Symbolic statement to the convict that they are acceptable. (vii) Allowing prisoners to vote will be a lesson in civic education.
PRISONERS’ RIGHT TO VOTE: OTHER COUNTRY SCENARIO
Although, there is no official data that can indicate a clear pattern on the right to vote for prisoners around the globe. However, a report by BBC (2012) lists 18 European countries which have given the right to vote to the prisoners. In addition to this, Slovenia has also given the right to all its prisoners to vote (Liberty 2016). Interestingly, Irish Government in the year 2006, gave the right to vote even without any public outcry demanding it, without any media controversy, or judicial decision. By doing so, Ireland adhered to its human rights commitments learning through the best international civil rights practices of providing the right to vote to all citizens including prisoners. Moreover, countries such as Iran, Israel, and Pakistan have also provided the right to vote to their prisoners.
Moreover, In the African Continent countries such as South Africa, Ghana, Kenya, and Botswana have also provided their prisoners with the right to vote in elections. However, there are many other countries that impose some restrictions. For Instance, the United Kingdom (UK) and New Zealand. In Germany, those prisoners are exceptions from the voting right who have been convicted of terrorism charges. Further, in Australia, those prisoners who are exempted from their voting rights have been sentenced to a minimum of three years. Interestingly, countries like France don’t impose a default ban on the prisoners’ right to vote. Rather it depends upon the court on a case-to-case basis. Moreover, in countries like Italy and some states in the US, those who have been convicted can lose their right to vote even after their release.
WHY INDIA SHOULD GIVE THE RIGHT TO VOTE TO PRISONERS
The arguments against prisoners’ right to vote can be dismissed majorly on the two grounds. One is that whenever a person is subject to confinement, it is a result of imprisonment in itself and no additional punishment should be inflicted on that person. Another major argument is that the purpose of prison is not merely “Punishment” in the physical context, but the aim of the prison is to reform that person and prepare to rehabilitate and reintegrate into society.
The United Nations’ Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules), in 1955 had already defined the purpose of imprisonment in its articles 57 and 58, and what treatment must be given to the prisoners in its articles 60 and 61. Article 57 of the rule reads as “Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore, the prison system shall not, … aggravate the suffering inherent in such a situation”.
Further article Article 58 states that, “The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life”.
Moreover, Article 60 states that, “The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”.
By denying the right to vote to the prisoners, India violates the above-said Provisions.
VOTING RIGHTS OF THE PRISONERS: THE WAY AHEAD
India is the most democratic country in the world. However, it has denied the Prisoners’ right to vote for a long period of time. RPA act imposes restrictions on the same, which has been discussed above. No one can deny from this fact that elections give an opportunity to speak about our disappointments and problems with the state of affairs in the country, while also taking the opportunity to campaign for our demands. Whenever we deny the right to vote of the prisoners, we push the prisoner further away from society. A citizen without having the right to vote has no existence in a democracy. Prisoners are mostly dependent on others to become their voice and raise issues on their behalf. Hence, one direct impact which prisoners’ right to vote will bring is the attention from policymakers regarding the needs of prisoners. Apart from this point that the prisoners have a small population as compared to the size of other communities, even then a moral responsibility would stand for vote seekers and subsequent winners of power to be responsive towards demands of the prisoners. Another aspect we should keep in mind is that laws are made and changed with different governments, while rights have been enshrined as fundamental. Change is the nature of the world, what we consider a crime today, might be legal tomorrow. Hence, Hence, a right as fundamental as the right to vote, should not be dependent on the status of imprisonment or conviction. It is the time when the Parliament should come forward to amend the RPA Act, and the right to vote should be granted to Prisoners too.