ADDRESSING THE DILEMMA: A MAN IN JAIL CANNOT VOTE BUT CAN CONTEST ELECTIONS

Introduction

This is a dilemma that goes against every fibre of humanity and logic. If a man is allowed to contest elections from jail, why is he or she not allowed to vote? Is there any sound argument against it or our lawmakers have forgotten to look upon this aspect? The basic rationale is that every citizen shall be given a right to vote even, if they are under detention(such right is already granted), under-trial or even convicted. I do not wish to argue that the convicts of a crime shall be given every right that is equivalent to that of a person who is abiding by the law of India. I simply wish to base my argument on the fact, that a convict can contest the election but a man in jail cannot vote, which is unfair.

Arguments against granting voting rights to prisoners

There has been much debate on this particular topic. This issue has been raised again and again though the position of the judiciary and the executive is clear: there must be no voting rights to the prisoners whatsoever.

Let us now know what is the established law and the rationale of the court:

The Indian law under section 62(5) of the Representation of People Act, 1951 states:

‘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.’

Now, in the curious case of Anukul Chandra Pradhan vs Union Of India (AIR 1997 SC 2814), the rationale of the court was given on this subject matter in three points:

• As the first reason, the argument was given in a nutshell that there would be a large deployment of a police force and that would require a pool of large resources.
• Secondly, as per Article 14, the prisoners cannot claim the right to equality as it is their bad conduct that has lead them to prison in the first place.
• Thirdly, they stated that criminals should not be a part of the election process.

Firstly, it was argued that conducting the procedure of voting would require the prisoners to go to the voting booths. This would require a large amount of police personnel and there would be a high chance of a security breach. This would, in turn, put the social security of the people in jeopardy.

Secondly, Article 14 and Article19(1) are the two provision that a person might claim when it comes to voting right. As for article 14, a reasonable classification is created as they are given the status of second-class citizens due to their wrong deeds. Now, Article 19(1) contains the right to vote, though it is subject to reasonable restricts. These reasonable restrictions can be imposed as it is a discretionary power and hence exercised in the present scenario.

Thirdly, When it comes to criminals not being part of the election process is derived that a man who cannot follow the laws of the nation shall not participate in the democratic setup. Here, voting is treated as a right granted to those who abide by the law and not to those who defy it.

Arguments in favour of granting voting rights to prisoners

On the onset, it is quintessential to counter the arguments of Anukul Chandra Pradhan vs Union Of India (AIR 1997 SC 2814), so that a clear image of this issue can be provided.

Firstly, it was argued that there would be a large police force required and it would hamper the social security if the prisoners were to go and vote.  Now when we read section 62(5) of the Representation of People Act, 1951: detainees have got the right to vote. Now the voting is done through the ballot system, now why not such a system is implemented in the prison? There would be no need for the police force and social security of the people in respect to this matter.

Secondly, it was argued there is a difference between a person in jail and a normal citizen as it is their bad deeds that have landed them in jail. Though, sadly enough, the purpose of the punishment as per various theories of punishment contains reformation as a value. Yes, it is true India follows various punishment theories though the essence of reformation is clearly visible and demonstrated in the legal system. Hence, to exclude them from such election proceedings is against the basic character of democracy.

Thirdly, this argument goes against the values of reformation and international norms(as would be demonstrated further). Every person who has acquired the status of citizen, is residing in the nation and is governed by the criminal justice system and is acting under the laws of India. He or she shall be given the right to vote as it is a basic right to choose who you want to be governed by.

As to quote something of substantive value, Article 21 of Universal Declaration of Human Rights (UDHR) provides ‘that everyone has the right to take part in the government of their country, directly or through freely chosen representatives‘. Now, the term ‘everyone’ is mentioned here that shows the intention of the framers of this provision that no person shall and must be disqualified.

Moreover, article 25 of the International Covenant on Civil and Political Rights(ICCPR) states: ‘ Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) 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;

(c) To have access, on general terms of equality, to public service in his country.‘

It is true that these norms do not constitute as a hard law and is not binding though some amount of consideration have to be given to them.

Point of conflict

The main injustice done to the prisoners is when the people from jail can contest elections. According to the law, as per the election rules, a person convicted of a sentence below 2 years can contest elections. This is the point of conflict, why did the legislators make a law that disqualified prisoners to vote but a convict to contest elections? Is it because there is high visibility of parliamentarians who are accused or convicted of crimes? or was it to give themself the benefit from the position of power? Even if we accept the rationale given in the above judgement, does it not apply to the parliamentarians or are they above the law?

The position of the law is clear as day, ‘no man is above the law’. Hence, such benefit shall not be derived. If a right is taken on a rationale such rationale shall be uniformly applied or there shall not be such rationale otherwise it violates the very core of Article 14.

Conclusion

It can be said with utmost confidence that this law needs reform. There has been a long ignorance of the prisoners right and it is highly notable. Mukul Rohtagi in the UN stated that “Ours (India) is a land of Gandhi and Buddha” then why has India not ratified the UN Convention against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT)? Gandhi and Buddha both were a symbolism of peace and harmony. India has sidelined the rights of the prisoners for a very long time and this is the time where a pinch of humanity shall be demonstrated as it is not the man who is a criminal, it is the society that makes him a criminal.