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.
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
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.