04/05/2019 10:42 PM IST

We Have MPs With Criminal Records, But Prisoners Can't Vote

While many candidates accused of heinous crimes contest elections, no political party supports the voting rights of India's prisoners--a vast majority of whom are undertrials.

Mansi Thapliyal / Reuters
Police stand guard at one of the gates of the Tihar Jail, which is the biggest prison in South Asia, in New Delhi on March 11, 2013.

Chandigarh—US Democratic presidential candidate Bernie Sanders recently kickstarted a debate and a number of newspaper op-eds in his country by saying that prisoners should be allowed to vote while serving their sentences.

In India, where every election season brings with it multiple voter awareness campaigns, no political party has so far announced any support for the voting rights of prisoners. As per the National Prisons Information Portal (NPIP) data, India has around 4.77 lakh prisoners—over 64% of these are undertrials in over 1,412 prisons.

Put differently, lakhs of innocent Indian citizens who have not been found guilty by any court of law, nevertheless, do not vote. 

While the Representation of the People’s Act (RPA),1951, grants citizens who have been held under preventive custody under the Goondas Act, National Security Act and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (Cofeposa) the right to vote, other prisoners, including undertrials and those who have been convicted, are not allowed to vote in India.

Even prisoners in the categories allowed to vote have to first write to jail authorities for permission to cast a postal ballot, but barely anyone does that. Dr. Karuna Raju, Punjab’s Chief Election Commissioner, told HuffPost India that for the 2019 general election, the state didn’t receive a single voting request from people held under preventive custody.

Even in Telangana, which has carried out prison reforms successfully, only four of the 300 detainees under preventive custody voted in the election on April 11, claims police sources.

Why are prisoners not allowed to vote in India?

There have been multiple arguments against the idea: while some have argued that people who commit a crime have broken the social contract and hence should give up their constitutional rights, some feel that enforcement agencies like state police will put undue pressure on the prisoners to vote for the ruling party in a respective state.  

After all, in a democracy, Har Ek Vote Zaroori Hota Hai…(Every single vote counts). Arguably, the best known example of this is when Prime Minister Atal Bihari Vajpayee moved a motion of confidence in the parliament to prove he had the support of the majority, his 13-month old government fell for want of just 1 vote in 1998. 

Shivanshi Asthana, who works on issues related to electoral reforms in SAARC countries, wrote for Quartz India in March that there are many reasons to allow prisoners to vote, including that there is no differentiation in terms of gradations of crime, meaning that even a person who has committed a minor transgression is stripped of the right. She also pointed out that it is ironic that those charged with crimes are prevented from voting when they are allowed to contest elections.

Three law students from Uttar Pradesh-based Galgotias University have challenged in the Delhi high court the constitutionality of section 62(5) of the RPA, which deprives prisoners of their right to vote.

The section says, “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 lawful custody of the police: Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force”.

Praveen Kumar Chaudhary, one of the three students, told HuffPost India that giving prisoners the right to vote can help curb violation of human rights and ensure “the safety and privacy of women prisoners in India”.

While the Delhi High Court issued a notice to the Election Commission of India (ECI) on March 8 and asked them to reply within three weeks, it hasn’t received a response yet.

The case is coming up for hearing on May 9.

Hindustan Times via Getty Images
A view of Jail Number 2 in Tihar Jail. Thousands of inmates at Tihar jail work in its various units, making a wide range of items such as cakes, LED bulbs and furniture. The number of these factories has risen to 36 over the years and they have an annual turnover of about 35 crore. 

In 1919, when the British enacted the Government of India Act, they included this provision to prevent Indian prisoners lodged in jails from voting.

The Act was later repealed by the tenth schedule of the Government of India’s Act 1935 to provide voting rights for every person registered on the electoral roll for the time being in force for any constituency. After independence, this Act with all enactments was repealed under Article 395 of the Constitution of India.

“From 1919 to 1935, the word “convicted” was broadened to include person undergoing a sentence or transportation penal servitude, or imprisonment. The Government of India Act 1935 set out the precedent for Section 62(5) of the Representation of the People Act 1951, but the precedents should not be allowed to retain its status or allowed to dilute the vote of every citizen in Democratic, Socialist and Republic India,” said Chaudhary.

Law giveth?

Multiple judgements by the Supreme Court and various  high courts have upheld the validity of Section 62(5) of the Representation of the People Act, 1951.

The same provision has been challenged on the grounds of Article 14 of the Constitution. In Anukul Chandra Pradhan v/s Union of India case, the Supreme Court observed that the right to vote is subject to the limitations imposed by the statute .

In Mahendra Kumar Shastri v/s Union of India, the Supreme Court observed that the restriction imposed by the Representation of the People Act, 1951 was not unconstitutional and was in public interest.

In one of its decisions, the Patna high court said thatthe right to vote is a statutory right. The law gives it, and the law can take it away.

Lawyer and senior Congress leader Kapil Sibal thinks that voting rights should be granted to prisoners as they do not stop being citizens of India.

“Even after conviction, many apply for a repeal and are proved  innocent. Also, a convicted person can contest elections after a stipulated period. Along with the convicted, even undertrials who are yet to be proven guilty were denied voting rights. We need to bring in legislation to make an amendment in the provision,” Sibal told HuffPost India.

Ranjan Lakhanpal, a Chandigarh based human rights lawyer and activist,  said that prisons should be seen as a place where rehabilitation and opportunities for social transformation are possible.

“Hundreds of cases from the overcrowded prisons speaks about maltreatment and human rights violations worldwide. By granting voting rights to the prisoners, we will give them a chance to be included in the society as a responsible citizen and that is the first step to democracy,” he said.

According to section 21 of the RPA, anyone detained in jail without being convicted can vote. For this, a detainee has to write to the returning officer that they want to vote, including their name, address, place of detention and electoral roll number. They can then cast a postal ballot which will be filled in the presence of a jail superintendent, commandant of a detention camp or any election officer.

How do prisoners under preventive custody vote?

According to section 21 of the RPA, anyone detained in jail without being convicted can vote. For this, a detainee has to write to the returning officer that they want to vote, including their name, address, place of detention and electoral roll number. They can then cast a postal ballot which will be filled in the presence of a jail superintendent, commandant of a detention camp or any election officer.

Dr. Raju, the Punjab CEC, said there was a lack of awareness among people under preventive custody about their voting rights.

“During every meeting, we highlighted to the jail authorities to encourage voting among such detainees but no one has come forward to cast their vote. As of today, none of the detainees of preventive custody in Punjab have applied for a postal ballot in the 2019 parliamentary elections,” said Dr. Raju.

“We are still struggling to get fresh air and drinking water and busy in addressing farmers’ concerns and other issues. It is still not the top priority for us,” said Sibal.