Elections & Representation of People’s Act

Answer: Post-independence, India adopted universal adult suffrage. This ensures that the interests of all citizens are taken care of while designing policies and programmes of the government besides ensuring ‘political equality’ – one of the goals enshrined in the Preamble to the Constitution of India. However, Section 62(5) of the Representation of People’s Act, 1951 (RPA) denies the ‘right to vote‘ to anyone who is in prison whether convict or undertrial, or in lawful custody of police. As per NCRB 2016 data, nearly four lakh Indian citizens lodged in prison were denied the right to vote in the 2019 Lok Sabha elections. Reasons for not allowing prisoners to vote in elections:

• Curtailment of rights akin to civil death: A person pronounced as an offender, infamous or outlaw, is denied many of the rights, including even some fundamental rights, enjoyed by free citizens. The right to vote, not being a fundamental right, is lawfully curtailed by a statute, i.e. Section 62(5) of the RPA, which is not a bad law on this account.
• Resource crunch: Permitting every person in prison to vote would require deployment of a much larger police force and greater security arrangements.
• Equality claims unjustified: Prisoners have broken the social contract and have voluntarily put themselves outside the social order and thus cannot claim equal freedom and rights.
• Purity of election: To keep persons with criminal background away from the electoral process.
• Responsibility of the Government: Government has an obligation to punish those who break laws.
• Deterrent values: Not giving prisoners the right to vote also has, as a powerful moral symbolic value, which conveys that the society finds the convict’s behaviour to be unacceptable.

In this context, following arguments can be made to allow prisoners to vote:

• Outdated concept of civil death: This concept is outdated and the judiciary has recognized various rights even to convicted prisoners from time to time, like the right to life under Article 21.
• Double punishment: India’s judicial pronouncement on prisoners’ rights have long stated that a prisoner retains all rights enjoyed by free citizens except those lost necessarily as an incident of confinement.
• International practices: In most countries around the world, the restrictions on prisoners ‘right to vote is restricted to “convicts”, while those undergoing trial and detainees are eligible. There is a broad consensus that undertrials and detainees who have not yet been proven tohave broken any law as per the court should have the right to vote.
• Laws are temporal: Laws are changed with different governments, while rights have been enshrined as fundamental. A crime, today, might be legal tomorrow. Hence, a right as fundamental as the right to vote, should not be dependent on the status of imprisonment or conviction.
• Undermines the democratic polity: The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts in a democracy.
• Rehabilitative approach: Such a deprivation is not required as part of Indian penal system because the aim of imprisonment is to continue a prisoner’s interest in civil life inculcating a sense of responsibility towards his/her eventual return to the society as a “law-abiding” and “self-supporting” citizen.

A citizen without a vote in a democracy has no existence. This is evident from the fact that election manifestos barely mention any promises for the betterment of prison conditions or legislation. Thus, the blanket ban on voting rights of all prisoners must be removed in India by first allowing undertrials to vote in elections and gradually moving towards allowing all prisoners the right to vote.