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Above: Prisoners making organic pickles at the district jail in Udhampur, Jammu. Although they can work and earn money legally they can’t vote/Photo: UNI

An archaic provision in the Representation of the People Act, which denies franchise to prisoners, is being challenged in the Delhi High Court as it violates the concept of equality and freedom of expression

By Venkatasubramanian

It is not unusual to find legal provisions which, on the face of it, lack justification, and continue in the statute books simply because they have not been successfully challenged in courts. Section 62(5) of the Representation of the People Act, 1951, is one such provision, which has so far evaded scrutiny by activists, who are inclined to use PILs to bring legal aberrations under challenge. It is to the credit of three law students of Galgotias University, Greater Noida—Praveen K Chaudhary, Atul K Dubey and Prerna Singh—that they mounted a challenge concerning prisoners before the Delhi High Court so that its repeal is considered by the judiciary at the earliest.

Section 62(5) of the RPA 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 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; Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector.”

General Elections 2014 – Reference Handbook published by the Election Commission excludes prisoners from participating in elections even if their names are on the electoral rolls. The first proviso to Section 62(5), however, does not deny voting rights to detainees, while the second proviso safeguards the right to vote of a prisoner who has been deprived of it by reason of prohibition under this sub-section. This was inserted through an amendment in 2013.

This amendment was the result of a Supreme Court order on July 10, 2013, in the case of Chief Election Commi­ssioner v Jan Chaukidar and Others upholding an order of the Patna High Court declaring that a person who has no right to vote by virtue of sub-section (5) of Section 62 of the RPA, is not an elector and is, therefore, not qualified to contest the election to either House of Parliament or the Legislative Assembly of a state.

The then UPA government filed a review petition and without waiting for its outcome, felt the law should be am­en­ded for suitably addressing the situation arising out of the order. It is clear that the purpose of the 2013 amendment is not to enable a prisoner to exercise his franchise, but to enable him to contest an election. Enabling prisoners to contest an election, but denying them the right to vote is both inexplicable and indefensible.

As per the 2015 report of the Na­tional Crime Records Bureau, the total number of jails in India is 1,401. The total number of prisoners as on December 31, 2015, is 4,19,623, of which 2,82,076 are undertrials (67.2 percent).  The petitioners argue that giving prisoners the right to vote will serve as “natural defenders” of their own interest.

They also contend that providing franchise to prisoners will make prisons a part of a constituency and help improve prison and jail conditions and make whom they vote for accountable. They further submit that if prisoners enjoy voting rights, more and more politicians will consider reforming our criminal justice system, and this would be a commonsense way to help them identify needed changes.

While the reform of prisons across the country is an immediate objective of granting franchise to the prisoners, it will make adult franchise truly universal, as it would make the vote of each and every citizen count, besides enabling prisoners to enjoy the human attributes of dignity and personhood, which they are entitled to as citizens and human beings. The petitioners said that Section 8(3) of the RPA, 1951, does not disqualify a person from contesting an election if he has been convicted and sentenced to imprisonment for less than two years for an offence. Denying the same persons their right to vote when they are under imprisonment, therefore, makes no sense. Besides, there is no bar on persons who manage to secure bail from exercising their franchise, even though those who are in prison, and denied franchise, are considered a separate class only on the ground of their inability to secure bail. The nexus between securing bail and franchise is again unreasonable, and strikes at the root of equality.

In support of their petition, the students invoked Article 51 of the Constitution which requires the State to endeavour to foster respect for international law and treaty obligations. Thus, they point out that Article 21 of the Universal Declaration of Human Rights (UDHR) provides for the equivalent free voting procedures and which shall be by universal and equal suffrage. Further, Article 3 of the UDHR provides an equal right of men and women to the enjoyment of all civil and political rights. Article 25 of the International Covenant on Civil and Political Rights guarantees the right to vote and free expression of the will of the electors.

Under Sections 34, 35 and 36 of Chapter VII of the Prisons Act, 1894, prisoners can work and follow any trade or profession with the prison superin­tendent’s permission. “It is irrational and unjustifiable to deny them the right to vote within the jail itself,” say the petitioners.

Australia, Canada, Ireland, New Zealand, and South Africa are among the few countries, according to the petitioners, which have granted the right to vote to their prisoners.

Therefore, the petitioners have argued that Section 62(5) of the RPA violates the concept of equality, and freedom of expression, and hence is in breach of the basic structure of the Cons­titution. The impugned Section, according to them, fails to consider that Articles 14, 19(1)(a) and 21 of the Constitution constitute the golden triangle, and the three together protect an individual from falling into the abyss of unrestrained exercise of power by the State.

The petitioners rely on the Supreme Court’s observations in Jyoti Basu v Debi Ghosal (1982) that freedom of voting, as distinct from the right to vote, is a species of freedom of expression. In this case, the Supreme Court held: “Initially, right to vote cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted.”

In People’s Union for Civil Liberties v Union of India (2009), the Supreme Court held: “Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote.”

In C Narayanaswamy v CK Jaffer Sharief, the Supreme Court held in 1994 that democracy based on adult franchise is part of the basic structure of the Constitution. In Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981), the Supreme Court had held that the prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.

The Supreme Court’s landmark judgment in 2017 declaring the right to privacy as a fundamental right has also been used by the petitioners to contend that prisoners, under Article 21 of the Constitution, have the right to live with dignity, and therefore, should have access to all the rights available to a free person, which add meaning to his dignity, which is a facet of the right to privacy.

Chief Justice Rajendra Menon and Justice V Kameshwar Rao, who heard the petitioners on February 20, have directed issue of notice to the respondents, the Union of India and others, and posted it for further hearing on May 9. As it is not an adversarial litigation, the respondents, it is hoped, will not oppose the striking down of Section 62(5), to ensure justice to prisoners.

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