Debarment of persons in prison or police custody to vote in an election

This article is written by Pranav Ranjan, from Lovely Professional University, Jalandhar. This article deals with the laws about the background of “the right to vote for prisoners” as per the Indian Constitution and also puts light on the constitutional validity of Section 62(5) of the Representation of the People’s Act with the help of various judgments.

Introduction

India has been referred to as the largest democracy in the world due to the massive scale of the elections held there. Millions of voters cast their ballots to choose representatives for the Lok Sabha, State legislative assemblies, and the legislature of the union territories at the general election. As a fundamental aspect of the Constitution, free and fair elections have been held.

Right to vote under the Representation of the Peoples Act, 1951

There are 4,68,094 inmates overall in India, of whom 3,25,600 are awaiting trial and 1,40,000 are convicts, according to a record called “Prisoner Statistics India, 2018” that is typically kept by the National Crime Branch. Who is a prisoner, then, and how do we define that in our research? According to Section 3 of the Prisoner Security Act of 1894, a person who is detained in jail or prison after committing a crime is considered a prisoner. In plain English, a prisoner is someone who is detained in a facility because they are either being investigated for a crime they did not commit or are being punished for some illegal behaviour.

The Representation of the Peoples Act makes further note of and celebrates the right to vote. This Act aims to provide the standards, guidelines, and regulations for free and fair elections to the respective houses of parliament and the houses of the legislature of each state. It also provides information on the qualifications and disqualifications for membership in those houses and further mentions corrupt offences and practises in connection with the offences that some politicians commit, which may include bribery or the distribution of alcohol, among other things. The aforementioned Act also addresses any disagreements or misunderstandings resulting from or related to such elections.

The Representation of the People’s Act’s Section 62, which primarily discusses those who are excluded from the electoral process and are denied the “right to vote,” makes reference to the right to vote. The general rule of voting, which states that a person who is listed on the electoral record of any constituency is only eligible to vote in that constituency, is discussed in the first clause.

The next clause (b), discusses the candidates’ ineligibility to cast ballots due to the reasons listed in Section 16 of the Act. The following clause (c) refers to voters who intend to cast ballots in more than one constituency, which is against the law. If a voter casts a ballot in more than one constituency, his vote is void. Next, article (4) states that a voter may only cast a ballot once in each constituency; if he or she casts a ballot twice, that vote is void.

The provisions of this section states that the right to vote should not be taken away from a person who is in custody for preventive detention and he must be able to cast his vote. According to clause (5), no person who is confined in a prison or in the legal custody of the police shall be allowed to vote.

Right to vote: constitutional or a fundamental right

Is the right to vote a constitutional right for each and every citizen of this nation? In the case of NP Ponnuswami v. Returning Officer, the Supreme Court of India ruled that the right to vote or run for office is not a civil right but rather a product of statute or special law and must be subject to the restrictions set forth by it. Since neither a basic nor a common law right, the right to vote is. Additionally, it is regarded as more of a substantive right than a legislative right. Noting that the right to vote does not come from the law but rather derives from the constitution, which is stated in Indian Constitutional Article 326. It is not seen as a fundamental right as a result.

Anukul Chandra Pradhan v. Union of India & Ors. (1997 Judgement )

The court maintained the legality of section 62 of the Representation of the People’s Act in two instances in this case, commonly known as (the 1997 judgement). One is that it is not a right that is granted in accordance with Article 14 of the Indian Constitution, and two is that the right to vote is subject to legislative restrictions and cannot be considered a fundamental right. The court also discussed the fundamental constitutionality of Section 62(5) of the Representation of the Public Act. As a result, the court ruled that Articles 21 and 14 of the Indian constitution are not violated by denying convicts the ability to vote.

Stand of the Delhi High Court on Praveen Kumar Chaudhary v. Election Commission & Ors.

In this case, the petitioner sought that Section 62(5) of the Representation of the People’s Act be invalidated on the grounds that it violates the fundamental principles of the Indian constitution. The petitioners also wanted a guarantee that the convicts would receive the necessary amenities and facilities so they could participate in the electoral process from behind bars. The Supreme Court clarified and identified the infrastructure issues and irregularities in this ruling that prevented the convicts from voting.

The contention of the parties

The petitioners in their contention said that there is no distinction or classification between the person who is in jail or the one who has been granted bail or is out of jail. Furthermore, the petitioner mentioned that as per Section 62(5) of the Act, a person whose name is not mentioned in the electoral roll is not ceased to be an elector which in simple words means that the person can contest the election if he is jail but he cannot cast his vote if he is in jail. The petitioners also submitted that this kind of classification is in violation of Article 14 and the basic structure of the Indian Constitution.

View of the court

The Honorable Supreme Court ruled that the right to vote is a common-law right that is granted by the state and not a constitutional or basic right. The court also noted that some restrictions outlined in Section 62(5) of the Representation of the People’s Act also apply to “the right to vote.”

The court also cited the decision in S. Radhakrishnan v. Union of India & Ors, concluding that Section 62(5) of the relevant Act is constitutionally valid and that the ability to vote is a statutory right rather than a basic one that cannot be restricted by law. The court dismissed the petition based on those two factors as well as the ruling in Anukul Chandra Pradhan v. Union of India & Ors.

Conclusion

Similar to any other right, denying someone their right to vote will not exclude them from society. A person who is being held in prison because they are either being investigated for committing a crime or are being punished for committing a crime is considered to be a prisoner. Furthermore, it’s crucial to comprehend a prisoner’s psyche before deciding whether or not to allow them to participate in the electoral process by casting a ballot. Given that prisoners—or the bulk of them—are inept at respecting the law’s rules and standards, it is obvious what decisions they would make to advance society. Furthermore, what sort of option can you anticipate? A thief, a murderer, or a rapist will select their spokesperson. Thus, Section 62(5) of the RPA does not need to be amended because it restricts inmates’ ability to cast ballots in elections.

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