By Prof Upendra Baxi
No legal provision can be clearer than Section 62(5) of the Representation of the People Act 1951: its sub-cause (5) 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.” It further states that “nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”
Prisoner disenfranchisement has been naturalised by that legislative fiat. The question has only been whether such a legislative saying is constitutional or not, particularly since the guarantee of substantive due process of law and strict proportionality standards have been judicially innovated since the iconic Kesavananda Bharati and Maneka Gandhi cases and social action litigation introduced high judicial invention and statecraft.
Disappointingly, the Supreme Court has sanctioned all forms of civic disenfranchisement. Citizens’ rights to contest and vote remain subject to any disqualifications by the play of the power of disenfranchisement. Not too long ago, Haryana and Madhya Pradesh disenfranchised thousands of Indian citizens this way. Rajbala v. State of Haryana [AIR 2016 SC 33] upheld as valid the disenfranchisement of about 60,000 women by prescribing educational qualifications, among others, on the ground that these amendments satisfied Article 14 reasonable “classification” requirement. This may occur under the auspices of statutory change if any degree of reasonableness may be found to the broad objectives of the law. This broad nexus is held enough because the Court has held the right to adult franchise as a strictly a statutory right, and not a common law right, or a natural right or a customary or treaty created right under international law.
The last is strange because Article 25 of the International Covenant on Civil and Political Rights states categorically that every “citizen shall have the right and the opportunity”, without any ground of discrimination of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. and “without unreasonable restrictions” to “take part in the conduct of public affairs, directly or through freely chosen representatives” and to “vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.
And yet the principle of “without reasonable restrictions” has not been followed either by the legislature or the apex court, which has regarded adult franchise merely as statutory right, and not an important human right. Article 51, a Directive Principle of State Policy enjoining respect for international law, has been ignored in this domain and the Supreme Court, too, has not given due interpretive salience in judging the reasonableness of statutory restrictions.
It is also maintainable to say that the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, have now become customary rules of international law. These stress that prisoners should be treated with “inherent dignity, that imprisonment is for their reform, rehabilitation and reintegration to the society” and “prisoners should continue to participate in sociopolitical activities”. It was estimated in the 2019 Lok Sabha elections that approximately four lakh Indian citizens thus stood deprived of the rights of adult franchise. Should this be permissible?
In this light, it is surprising that on April 4, 2023, the Supreme Court of India in a fateful order by a three-judge bench (comprising CJI Dr DY Chandrachud and Justices Pamidighantam Sri Narasimha and JB Pardiwala) held that “…we are not inclined to entertain the petition under Article 32 of the Constitution of India”.1 But it is also unsurprising given the fact that the constitutional validity of the Representation of the People Act 1951 has been upheld by a two-judge bench of this Court2 and later by a three-judge bench of this Court.3 Why then was an appeal against this section allowed on three situations—in 2023, 1987, and 1997?
The 1987 order by Justices VB Eradi and V Tulzapurkar was very terse and merely dismissed the writ petition saying: “We do not find any merit in the contentions urged by the petitioner in the writ petition”. It further said that the “disability which is imposed under Section 62(5)” of the Act “is equally applicable… to all persons similarly…mentioned therein and they are even prevented from contesting the election or offering themselves as candidates for such election. The provision is reasonable and in public interest to maintain purity in electing peoples’ representatives and there is no arbitrariness or discrimination involved”.
Note, among other things, the argument of “purity”; surely, pollution of free and fair elections by alleged “criminals” on bail contesting the polls, and even winning them, or undisclosed election funding does not weigh as strongly with the Court which seems content only with prisoner disenfranchisement.
The 1997 judicial discourse is more elaborate and makes no mention of the previous order at all. Chief Justice JS Verma and Justices Sujata V Manohar and BN Kripal are more considerate to the public interest petitioner Rajinder Sachar. He argued that sub-section (5) violates Articles 14 and 21 of the Constitution because the expression “or otherwise” has a very wide “connotation: it denies voting right even to undertrials and other persons detained in a prison for any reason, including the reason of inability to furnish bail”. Further, the restriction “applies to a person in lawful custody of the police, which would include a person detained during investigation before a chargesheet has been filed against him”, while “a person convicted and sentenced to imprisonment but released on bail is permitted to vote”. These contentions still await full and fair consideration by all decision-makers—whether legislative or judicial—concerning prisoner disfranchisement.
The decision disappoints because it does not meet the high constitutional expectations raised by the new constitutional judicial review (CJR) process of strict proportionality raised by the apex court 2014.4 Why should any petitioner accept the verdict that the “very basis” of challenge to the validity of sub-section (5) is “not available” when the threefold reasoning is itself so very unsatisfactory? The reasoning offered is threefold.
The first is based on the Ponnuswami 5 rationale that there is no right to vote which is constitutional, common law or a fundamental right; it is merely a statutory right which can be amended by a statute. The second consideration is based on reasonableness of exclusion; and the third is a pragmatic constitutionalisation of convenience.
The first difficulty persists even as late as 2023. However, the Court itself does not speak with a single voice on whether [a] the right to vote is a statutory right or a constitutional one or a human right and [b] how far a legislative disenfranchising of citizen prisoners (among others) against an indictment of being violative of a basic structure or essential feature right the people may be considered legitimate. Running with the hare and hunting with hound is scarcely a good strategy for CJR! And does the 1952 decision in Ponnuswami6 constitute the last word, of CJR on this issue, if such things can be?
The second consideration of reasonable nexus falls short of the strict proportionality standards now adopted in CJR adjudication of the restriction. In any case, any mechanical adoption of reasonable standard in all prisoner disenfranchisement situations falls foul of purposive and progressive adjudication known with and since the Maneka Gandhi case.
And the third consideration—of constitutionalisation of convenience, makes Article 32 and Part III of the Constitution almost fortuitous rendering inoperative all constitutional redress. The Supreme Court essentially gives three reasons for prisoner disenfranchisement:
(I) Resource crunch (as “permitting every person in prison also to vote would require deployment of a much larger police force and greater security arrangements”);
(II) No right to have “equal freedom” (a person who is in “prison as a result of his own conduct cannot claim equal freedom”);
(III) Purity of the election process (keeping “persons with criminal background away from the election scene”).
Surely, reasons I and III can be achieved by a less invasive alternative by providing a polling booth within the precincts of the jail, or in their neighbourhood, and asking whether any “resource crunch” may be a permanent, or an eternal, situation, while allowing those accused of heinous crimes, on bail, to contest and even win elections (data reveals, as of 2019, that 13% of the candidates were accused of grave crimes like “murder, rape and heinous crimes against women”).
And the second argument of “equal freedom” mocks the very idea of reformative, rehabilitative and reintegrative aspects of punishment. The basic element of legal punishment is incapacitation and fine as providing a general deterrent. A fuller justification for deprivation of residual rights of prisoners has yet to be made out. We do not know how additional deprivations, deemed to be reasonable by legislative law, or jail manuals, or even adjudicative pronouncements as serving the general aims of punishment.
In the interregnum of further impact studies, would it not be reasonable at least to impose a judicial moratorium on measures that generate prisoner disenfranchisement? Instead of tersely referring to past laconic decisions, the time surely has come, in the march towards the centenary of the Constitution, for the Supreme Court to suo motu articulate a cogent protection regime for the residual human rights of those in prison or other forms of custodial confinement.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1 Aditya Prasanna Bhattacharya v UOI [Writ Petition (Civil) 462/2019.
2 Mahendra Kumar Shastri v UOI (1984) 2 SCC 44.1.
3 Anukul Chandra Pradhan v UOI [(1997) 6 SCC 1.
4 See, Upendra Baxi, India Legal, “A Landmark but Perplexing Decision?”, India Legal, March 14, 2013.
5 In N.P. Ponnuswami v Returning Officer, Namakkal Constituency and Other,  S.C.R. 218 at 236. See also, Jumuna Prasad Mukhariya and Others v Lachhi Ram and Others,  1 S.C.R. 608 at 610.
6 See Upendra Baxi, Note 5 above.