Delhi High Court issued a notice to the Election Commission of India (ECI) in a PIL pertaining to the denial of voting rights to prisoners which included both under-trials and convicts. Primarily, issues have been made by the petitioners on the grounds that Section 62(5) of the Representation of Peoples Act, 1951 (RP Act) is violative of Article 14, 19 and 21 and it discriminates between those incarcerated and those out on bail or in preventive detention. This section based on the concept of principle of ‘felony disenfranchisement’ upon which finds its moorings in the doctrine of ‘civic death’.
Even though a country like U.K , Russia followed presently this has been abandoned widely in progressive countries. Where a provision debarred prisoners serving a sentence for more than two years from voting, the Canadian Supreme Court struck down the same observing that the right to vote was fundamental to democracy and the rule of law which can’t be denied on personal grounds In South Africa, where convicted prisoners were deprived of their right to participate in elections, the Constitutional Court declared the same to be invalid and inconsistent with the constitution. As far as the Indian system concern and the precedent history of Supreme Court , there is no strict application of civic death or the felony disenfranchisement principle. By corollary, apart from the right of incarcerated persons to vote; the principle of ‘innocent until proven guilty’ – a cornerstone principle of our adversarial criminal justice system, too becomes an unsuspecting victim to this institutionalized injustice.
In order to view the scale of this injustice into perspective, we need to give approximate look through some hard facts which are the hardest truth of overburdened judiciary. This caused nearly one-third people are under trial which we can get to know by referring many landmark case ( rudal sha, Hussain Arab cartoon ) As per the Prison Statistics 2015, there were 2,82,076 under-trials and 1,34,168 convicts incarcerated in various prisons across the country. Moreover, this figure does not include the statistically significant figure of those under lawful detention of the police on the days of the election.
Firstly, as per the three-judge bench of the Apex Court in the PUCL (2013) case, the right to vote in India is not a constitutional or a fundamental right but a statutory right which come as a sub species of the freedom of expression under Article 19(1)(a). Further, the reliance of the petitioners on Rajbala v. State of Haryana (2015) on this point is potentially problematic given that the court holds the right to vote to be a constitutional right without taking note of the PUCL (2013) case. It is a different matter that the PUCL (2013) judgement can be subjected to critique for upholding the view taken in the Kuldip Nayar case that the right to vote, as distinct from the freedom to vote is a statutory right without adequately engaging with Reddi J.’s judgment in the PUCL (2003) case which states unambiguously that the right to vote, if not a fundamental right is certainly a constitutional right which makes as correlation. Secondly, in the Anukul Chandra Pradhan v. UOI (1997), arguments were rejected on the ground that the object of the legislation is decriminalization of politics even though the judgment is silent on the point of how preventing under-trials or even convicts from voting will help avoid a ‘criminalization of politics.’ Ironically, under section 8(3) of the RP Act, a person convicted for an offence which carries imprisonment of under two years is eligible for contesting an election. This is the biggest question put forth before judiciary which tracing the intent of the legislation. Lastly, It is debatable whether denial of voting rights to prisoners comes under ‘reasonable restriction’ thesis of the judiciary. The impugned provisions of the RP Act seem flawed owing to the fact that they violate the basic fundamental right of Right to life includes right to choose. The laws made in the parliament are equally applicable to prisoners. Therefore, all including those behind the bars, have the right to choose their representatives.

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