The European Court of Human Rights in Scoppola v. Italy (22 May 2012) has diluted the right to vote for prisoners that it upheld in Hirst v. The United Kingdom in October 2005. In this post, I briefly explore the different positions on the right to vote for prisoners and demonstrate that the legal position in India falls into the most regressive category. The debate in much of the world has been around whether individuals who have been tried and convicted of a crime can be deprived of the right to vote, which is quite progressive compared to the Indian position. The position in India, established through s.62(5) of the Representation of the People Act, 1951 and the judgment of the Supreme Court in Anukul Chandra Pradhan (July 1997), is that it is not just all those who are serving a sentence, but even undertrials and those in lawful police custody can be deprived of this right.
Hirst and Scoppola — Right to Vote Cannot be Denied to ‘All’ Convicted Individuals
In Hirst v. The United Kingdom, the provision challenged was s.3 of the Representation of the People Act, 1983 – “A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local election.” In a 12-5 decision, the Grand Chamber of the European Court of Human Rights (ECtHR) declared that ‘such a general, automatic and indiscriminate’ provision did not meet the requirements of proportionality and violated Article 3 of Protocol 1 of the European Convention of Human Rights.
However, the provision challenged in Scoppola v. Italy was slightly different. Rather than an automatic and indiscriminate ban on all those serving a sentence, the relevant Italian domestic law provided (translation from the Scoppola judgment):
‘1. The following
persons shall not vote:
persons shall not vote:
(d) persons who have
been sentenced to penalties entailing a lifetime ban from public office
been sentenced to penalties entailing a lifetime ban from public office
(e) persons under a
temporary ban from public office, for the duration of that ban.
temporary ban from public office, for the duration of that ban.
2. Judgments in
criminal cases shall entail the loss of voting rights only once they have
become final.’
criminal cases shall entail the loss of voting rights only once they have
become final.’
Article 29 of the Italian Criminal Code further provided:
‘A sentence
to life imprisonment or to imprisonment for no less than five years shall
entail a lifetime ban from public office for the convicted person; sentencing
to imprisonment for not less than three years shall entail a five-year ban from
public office.’
to life imprisonment or to imprisonment for no less than five years shall
entail a lifetime ban from public office for the convicted person; sentencing
to imprisonment for not less than three years shall entail a five-year ban from
public office.’
The ECtHR held that, unlike the United Kingdom’s law, the provisions in Italian law took away the right to vote only when individuals were awarded particular sentences. By virtue of not being a blanket ban, the ECtHR upheld the Italian law and confirmed in a press release that the United Kingdom had six months to change its law in accordance with the judgments in Hirst and Scoppola.
Comparative Analysis Highlights India’s Regressive Position
It will be noted that the provisions in both the UK and Italian laws operated only when individuals have been sentenced for crimes after a trial. The context of the debate in the ECtHR is very clear — it is whether States can take away the right to vote for all individuals who have been sentenced after a trial. In India the discourse on the right to vote for prisoners is many steps behind. Statutory law and a judgment of the Supreme Court have established the position that the right to vote can be taken away for not just all individuals serving a sentence, it can also be taken away for all undertrials and even those in lawful custody of the police.
I am not aware of a country whose position on voting rights for prisoner’s is as regressive as India’s. Countries across the world adopt different positions on the right to vote for prisoners but all them are premised on the individuals having been tried and convicted. On one end of the spectrum we have countries like Canada and South Africa where the respective apex courts have recongised the right to vote for all prisoners (Sauvé v. Canada (2002) and August v. Electoral Commission (1999)) and at the opposite end we have some states in the United States like Florida and Virginia that do not permit those convicted of committing a felony to vote even after serving their sentence. A large majority of countries, including over 20 countries in the Council of Europe (15 other countries in the Council of Europe have adopted positions similar to that of Canada and South Africa), fall in between these two extremes whereby prisoners are disenfranchised depending on the crimes that led to a conviction or sentence-based criteria.
India is clearly an outlier in this context because it does not base disenfranchisement of prisoners on being convicted for particular crimes or any sentencing related criteria and the constitutional basis for it is suspect.
The Unconvincing Search for Justifications in India
s.62(5) of the Representation of the People Act, 1951 explicitly takes away the right to vote from those ‘confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police’. However, the proviso to s.62(5) makes it inapplicable to those detained under a preventive detention law. A challenge to the constitutional validity of s.62(5) was rejected by a 3-judge bench of the Supreme Court in Anukul Chandra Pradhan v. Union of India in July 1997. Writing for himself and on behalf on Justices Sujata Manohar and B.N Kirpal, Chief Justice Verma was of the view that there was no basis for challenging s.62(5) because the right to vote was purely a statutory right and that Chapter III of the Constitution could not be invoked to challenge provisions of a statute that provided the content of such a right.
However, before coming to that conclusion, Justice Verma’s opinion provides three grounds for why a Part III challenge may also be rejected:
a. The objective was to address criminalisation of politics and when judging the validity of classifications that are intended to achieve such an aim, the legislature must be given more ‘elbow room’.
b. The resource crunch argument.
c. Prisoners are in jail because of their own conduct and are therefore deprived of liberty. They cannot claim freedom of movement, speech and expression on terms similar to others and the classification on the right to vote would be reasonable.
A constitutional challenge to s.62(5) necessarily needs to overcome the ridiculous (but yet established through many judgments) judicial position that the right to vote is purely a statutory right and cannot be seen as a constitutional right despite Articles 325 and 326 of the Constitution. Reasons for reversing this position that has been established through numerous judgments is best reserved for another post except to say that Justice Venkatarama Reddi’s opinion in PUCL v. Union of India (March 2003) articulates the nature of the right correctly in contrast to the dominant approach adopted by the two other judges in that case.
Each of Justice Verma’s justifications for why a Part III challenge would also fail stands on extremely weak footing. It is not feasible to present detailed responses to each of Justice Verma’s justifications in this post, but I do believe that it is shocking that Justice Verma’s opinion ignores the crucial distinction between undertrials and those in police custody on the one hand and those convicted on the other. There might well be an argument that this distinction should not be pressed and that the position in Canada and South Africa is the ideal that we should strive for. But my simple claim here is that even the most conservative position on this issue requires the Supreme Court to engage with the difference between those two categories and provide a justification on that basis rather than adopting an approach that treats them similarly. Even the case for disenfranchising those convicted of crimes is far from clear and the Supreme Court should have provided a far more reasoned judgment on why it believed that being sentenced for a crime meant that the right to vote could be taken away. Yes, being sentenced to prison does curtail liberties but surely that general level of justification is not sufficient in this context. The Supreme Court needed to go one step ahead and justify why the right to vote should be one of the rights that is taken away when prisoners retain many other rights.
We might choose to disagree with Locke and Rousseau who argue in favour of disenfranchisement on the basis that there has been a violation of the ‘social contract’. But surely, even they would agree that it has to be first established that such a violation has in fact occurred. It seems like a very fundamental point of justice to not exclude such a crucial democratic right on the ‘possibility’ of guilt, but yet the Supreme Court and Parliament seem to believe otherwise. Prisoners as a group, surviving on the fringes of our society, hardly possess any political capital and it is unfortunate that the Supreme Court has taken a view of prisoners that displays an utter lack of nuance.
A comment from Moiz Tundawala —
—————
Dear Anup,
Thanks for putting this up. I broadly agree with you on the point of unconstitutionality of s62(5). Some observations anticipating your post on the right to vote:
As I understand, the question whether the right to vote is a statutory right or a fundamental right is immaterial overhere. A Part III challenge should not focus on the content of the right as such: problematical is not that the right is being denied, but that a certain section of people is being denied the freedom to vote which has been statutorily made available to everyone else. Contrary to Rajinder Sachar (arguing for the petitioners), I believe Article 21 is not relevant—Blackstone spoke of liberty in terms of unrestrained locomotion which has later on been extended in the American context to a right to be let alone; it has never been seen to guarantee
participation in a political community. If democracy is suspended in the UK, the consequences for the Monarch would probably not be legal but political; if democracy is suspended or abolished in India, many
essential provisions of the Constitution would no doubt be violated—Arts. 325 and 326 read with provisions establishing the Union and State Legislatures, and those prescribing their composition and mode of election, but nothing in Part III I suppose, except Article 14. Some may say 19(1)(a) as well, but I am not convinced as of now.
So, instead of focusing on the content, we should problematize the unreasonableness in the criteria adopted for the selection of persons deemed suitable for being entitled to the opportunity of voting. A simple application of proportionality suggests that perhaps the complete exclusion of undertrials is an overclassification vis-a-vis
the state objective of decriminalizing politics. On the economic resources argument—the Court would have done well to remember that the framers of the Constitution were aware that democracy is a costly
affair and yet they preferred not to transfer power back to the descendent of the deposed Mughal ruler.
The problem in such cases is the assumption of the Court that the only option it has is to either uphold a law or declare it unconstitutional and void. A better approach may be to practice a weaker form of
judicial review; courts deliberating with law makers in constitutional reasoning will do the Indian agora a world of good.