India is one of the largest democracies where every individual has a Right to Vote. According to article 326 of the Indian Constitution mandates adult suffrage which means that every citizen above 18 years of the age has a right to vote. In recent years millions of people exercise their power of voting and select their representative.
However there is a significant exception regarding this right that is section 62(5) of the representation of the People’s Act 1951. This section prohibited people who are confined in a prison or under lawful custody of the police from voting. However this restriction does not apply to a person who is subjected to any kind of preventive detention.
PIL – Voting Rights for Prisoners
The Delhi High Court has dismissed a PIL seeking voting rights for prisoners, saying the facility was provided under the law and it can be taken away by the law as well. A bench of chief Justice D.N. Patel and Justice C.Hari Shankar said the Supreme Court has held the right to cast vote was neither a fundamental right nor a common law right and it is only provided by us by the way of a statute. The bench also noted the right to vote provided under the statute representation of people act was subjected to certain restrictions imposed by law, which does not allow the prisoners to cast their vote from jails.
The High Court said in the view of the apex court rulings and strategy position that it has no reason to entertain the plea and dismissed it.
Though this decision came on a plea by the way of a petition lodged by three law students Praveen Kumar Chaudhary, Atul Kumar Dubey and Prerna Singh who are seeking voting rights for all persons lodged in jail across the country. The petitioner challenged the constitutionality of section 62(5) of the RP act which drives the prisoners of their Right to Vote. Election Commission opposed the plea, saying prisoners do not have the voting right under the Act and later it has been upheld by the Supreme Court.
Prisoners in India
There are various disagreements made in support of extending voting rights to the prisoners. There is no distinction made in this regard between those who have been charged with heinous crime or other petty crimes, which mean people who have committed minor crimes are also discharged from the right to vote. People under conviction, trial and custody are also denied from their voting right. On the other side, it is usually believed that India has the world’s smallest prisoners population. According to some sources, 33 out of every 1, 00,000 people are behind the bar in India. Moreover, the criminal justice system is broken to a huge extent, and people usually do not get speedy justice like many other foreign countries. Prisoners suffer from multiple problems such as poor maintenance of infrastructure, legal aid, police custody etc.
Global Laws on Right to Vote
The countries like Europe, Switzerland, Finland, Norway, Denmark and Ireland allow the prisoners to vote. And many more countries are progressing towards giving right to the prisoners. Some countries like the Netherlands, Romania and many more has adopted a mid-way path which means voting here is allowed to certain permit and conditions. The prisoners imprisoned for less than 10 years can vote in Bulgaria whereas the prisoners who are imprisoned for less than five years can vote in Australia. This concept is working as a step towards rehabilitative justice. It is also considered that being able to vote is the most crucial identity as an equal citizen.
United States and the Universal Right to Vote
Article 21 of Universal Declaration of Human Rights provides that everyone has the right to take part in the government of their country, directly or through freely chosen representation, further, international covenant on civil and political rights article 25 states vividly that.
Every citizen shall have the right and the opportunity, without any of the distinction mentioned in Article – 2 that is race, color, sex, language, religion political or other opinion, national or social origin, property, birth or other status, and without unreasonable restrictions.
- A) To take part in the conduct of public affairs, directly or through freely chosen representatives.
- B) To vote and to be elected at genuine periodic elections this shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors
The clause 5 Section 52 of Representation of People’s Act, 1951 is in contradiction of the basic principles of law “Innocent until Proven Guilty.” As a citizen who is in custody or in any kind of imprisonment is restricted to vote no matter he/she is yet to be proven guilty or later after trial proves to be innocent. However, another surprising fact is that people who are imprisoned are qualified to contest elections but cannot vote. The law on prisoners’ right to what is completely vague and alike other countries India also needs a proper legislation for the Prisoner’s Right to Vote thus adequate legislation is required to make the law to fulfill all the shortcomings of the present law.
Author: Shubham Sharma,
Delhi Metropolitan Education, I.P. University, 2nd Yr.