Author: Rohan Goel, IV year of B.A.,LL.B from Delhi Metropolitan Education, Noida affiliated to GGSIPU, Delhi.
India is one of the biggest democracies in the world because in India the election is held on a massive scale. India has given the right to vote in a general election to every adult of the country, but the right to vote is not given to prisoners. Elections play a crucial role in a democratic country as an individual can influence government decision through voting.
In India, elections are also considered an important festival, and there are examples – In the peak of the the COVID-19 pandemic, the elections were held and counting was done in many states of the country. The right to vote gives Indian citizens the power to elect their representatives for the next 5 years.
According to a report by BBC in 2012, some of the European countries have giving voting rights to convicts. In 2006, the Irish government gave the right to the prisoners without any public outcry. Ireland adhered to its human rights commitments, providing the right to vote to all nationals, including prisoners. But as per Indian laws, prisoners are not allowed to vote.
RIGHT TO VOTE ACCORDING TO INDIAN LAWS
The Representation of the Peoples Act, 1951 (RPA) deals with rules, regulations related to free and fair elections and also state qualification and disqualification and further states about the corrupt practices. The act clarifies the confusion or any problem arising while conducting the election.
According to the RPA, 1951, every national who is above the age of 18 years and has a valid voter ID card can vote in the election. But section 62(5) of the RPA, 1951 states that-
Any person who is in prison, whether under an imprisonment or in the custody of the police, has no right to vote. But this section is not applicable to a person who is subjected to preventive detention under any law for the time being in force.
Even pre-trial detainees and under trials are not allowed to vote under the Indian laws, which violates the basic principle of law, i.e., a person is innocent until proven guilty. The person who is released on bail is allowed to vote, but the person in jail is not allowed to, it violates Article 14 of the constitution, and there is no reasonable answer for the same.
RIGHT TO VOTE IN CONSTITUTION OF INDIA
In the Indian Constitution, there is no fundamental right to vote though India has the largest parliamentary form of democracy. Article 326 of the Indian Constitution only states – those who are above the age of 18 years can vote and are not barred under the constitution or any law made by the Legislature on the ground of non-residence, unsoundness of mind, crime, or corrupt or unlawful practice, can vote in the election.
Voting is not a fundamental right, but it is a legal right that is given by the statute, it is not absolute, so certain conditions can be imposed and it can be taken away by making changes in the law.
The Apex court in N.P. Ponnuswami v. Returning Officer, held that the right to vote is a legal obligation that is subject to limitations, not a constitutional nor a fundamental right.
In Anukul Chandra Pradhan vs Union Of India & Ors, the apex court states that voting is subject to certain restrictions foist by the statute and further states that the object of section 62(5) is to prevent criminalization of politics & preserve integrity in the election. The court held that there is no infringement of Article 14 and Article 21 of the constitution of the prisoners if the voting rights are not given.
RIGHT TO VOTE - INTERNATIONAL SCENARIO
The Universal Declaration of Human Rights, ICESCR, ICCPR & other UN Covenants have recognized the right to vote to every citizen of the country. But countries violate the provisions and do not give their prisoners the right to vote.
According to Article 21 of the UDHR,1948, everyone has the right to take part, directly or through freely chosen representatives in the government of their country.
Article 25 of ICCPR states that everyone has the right & opportunity, without any unreasonable limitations, to take part directly or through freely chosen representatives in the conduct of public affairs.
In the above-mentioned articles of UDHR and ICCPR, repeated stress was given on the word everyone, i.e., all the natives of the nation have voting rights, and in the articles, it is mentioned that the citizens cannot be discriminated on the grounds of race, colour, sex, political or other opinion, national or social origin, or other status, etc. It indicates that the voting right is a natural right that cannot be taken away by the government. India is a signatory to both UDHR and ICCPR and Article 51(c) of the constitution also binds India to foster respect for international law and treaty obligations.
According to a report by BBC in 2012, some of the european nations have giving a right to vote to the prisoners. In 2006, the Irish government without any demand from public outcry or without any media controversy gave prisoners the right to cast their vote in the elections. Whereas, on the other side there are also some countries in which the citizen loses their rights even when they are released from the prisons and of which Italy and the United States are big examples. In Austria, prisoners cannot vote in the election until they have been out of prison for 6 months.
Right to vote is a legally recognized power of choice attributed to you as a citizen of India. Refusing prisoner of voting only pushes them further away from the community. In democracy, the right to vote is like power in the hands of the citizens of the country. In India, government is for the people and by the people, a citizen without a vote in a democracy has no existence.
Section 62(5) of the RPA, 1951 violates Article 14 of the constitution and thereby should be held unconstitutional. Elections are the spine of the democratic functioning of the country, the right to vote should not be a legal right, rather, it should be made a constitutional right. The voting right has been recognized under Article 21 of the UDHR & Article 25 of ICCPR as a human right. But India remains one of the very few nations that retain a blanket ban on prisoners voting right, despite being a party to the treaty.
I would conclude that the right to vote is power given to a citizen to elect their representatives and depriving the prisoners from doing is a violation of their human rights. The parliament is required to look into the matter and make provisions regarding the same for safeguarding the interest of the prisoners.