Open Access Research Article
A Critical Analysis Of The Right To Vote For Prisoners Under Trial In India
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A Critical Analysis Of The Right To Vote For Prisoners Under
Trial In India
Authored By
- Mathew Michael
ABSTRACT
The representation of
people’s rights act 1951 has laid down specific provisions relating to
elections. According to the statute, prisoners under trial do not have the
right to vote like convicts. This decision is ambiguous, as classifying
convicted prisoners and prisoners under trial does not fall in line with
Article 14 of the constitution of India and does not fall under the ambit of
“reasonable classification”. It does not align with the Natural law principle
of “innocent until proven guilty”. In this paper, the author shall be examined
to what extent Article 14 of the constitution of India, 1950 applies to
recognising and preserving the rights of under-trial prisoners concerning their
right to vote, in consonance with the natural law principle of “innocent until
proven guilty”.
Keywords: elections, under trial, reasonable
classification, natural law, right to vote
INTRODUCTION
Adult suffrage is a concept which has
been embedded in Article 326[1] of the
constitution, which states that, “Elections to the House of the People and to
the Legislative Assemblies of States to be on the basis of adult suffrage The
elections to the House of the People and to the Legislative Assembly of every
State shall be on the basis of adult suffrage; but is to say, every person who
is a citizen of India and who is not less than twenty one years of age on such
date as may be fixed in that behalf by or under any law made by the appropriate
legislature and is not otherwise disqualified under this constitution or any
law made by the appropriate Legislature on the ground of non residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to
be registered as a voter at any such election”. There is an ambiguity which
arises when prisoners under trial are not given the right to vote as they are
not disqualified to vote under the act according to the natural law principle
of “presumption of innocence” they are innocent until proven otherwise.
Article 14 of the Constitution of
India provides that any classification made regarding this Article must be
founded on an intelligible differentia (which distinguishes groups placed
together from groups not placed together). However, A-14 creates an ambiguity
regarding the classification and rationale in placing the under-trial prisoner
with the Convicted prisoner, depriving them of their Right to vote. This
ambiguity leads to a classification which is not reasonable and does not go in
tune with the principle of natural justice, which provides that a person is
“innocent until proven guilty'' It is contended that the denial of prisoners
their right to vote as the same as convicted prisoners does not fall under the
ambit of reasonable classification. Hence, it violates the principle of natural
justice. The research aims to determine the scope of Article 14 of the
Constitution of India is applicable in recognising and preserving the rights of
under-trial prisoners with respect to their right to Vote, in consonance with the
Natural law principle of “innocent until proven guilty”. To analyse the
research objectives and the problem in detail, the author seeks to adapt
doctrinal-based research. The method of data collection is qualitative, and the
data on which the author relies is taken from secondary sources and mainly
involves the use of texts. As an ardent reader and observer, the author relies
on the “existing data” in the form of statutes, case laws and journal articles.
By content analysis, the paper seeks to understand the ambiguity in the law and
the various legislations pertaining to denying under trials the right to vote
as same as convicts.
HISTORY
OF VOTING RIGHTS IN INDIA
India became an independent nation in
1947, and the Constitution of India was adopted in 1950. The constitution
guaranteed universal adult suffrage, meaning that all citizens above 18 have
the right to vote. This right was extended to all citizens of India,
irrespective of caste, creed, religion, gender, or economic status. Over the
years, several amendments were made to the constitution to extend voting rights
to various sections of the society, including women, Scheduled Castes and
Scheduled Tribes[2].
ADULT SUFFRAGE
The right to vote has become a
well-accepted part of international law and Indian constitutional
jurisprudence. The historical and jurisprudential foundations of this right
have been largely ignored by public discourse[3].
The constitutional right of the right to vote is what makes up a democracy; it
is the primary function of a democracy. The right to choose one’s leader is a
matter of grave importance, and no one should be denied such a right. Article
21, Universal Declaration of Human Rights, 1948, says that “The will of the
people shall be the basis of the authority of government; this will shall be
expressed in periodic and genuine elections which shall be expressed in
periodic and genuine elections which shall be by universal and equal suffrage
and shall be held by secret vote or by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures''.
The issue of voting rights for
prisoners under trial in India is governed by the representation of the People
Act, 950, and the Representation of the Peoples Act, 1951. These acts provide
for the preparation, revision, and correction of electoral rolls, the conduct
of elections, and the qualifications and disqualifications of members of
Parliament and the state legislatures. However, the Acts do not specifically
address the issue of voting rights for prisoners under trial.
THE EXTENT OF ADULT SUFFRAGE IN INDIA
In India, the concept of Adult
Suffrage is embedded in the constitution. Article 326 of the constitution of
India states that any person above the age of 18 who is not otherwise qualified
has the right to vote in the elections. This is not an absolute right, as some
restrictions are placed on it. Every citizen's vote in an election is a
security of dignity and parenthood[4]. In India,
the right to vote is not exclusive, it can be taken away from the government in
certain cases and is not given to some other people such as
? A
convicted prisoner
? A
prisoner who is under trial,
? A
mentally unsound person
RIGHT TO
VOTE FOR PRISONERS
This is a topic of wide debate about
why a convicted prisoner should not have the right to vote. The usual answers
were that a convicted prisoner is not a part of society and that his rights
were violated and taken away from him when he was convicted of the crimes.
India has banned prisoners' voting rights under section 62(5) of the
representation of people Act; 1951. The decisions laid down by the courts were
also in favour of this decision. On June 17, 2022, the Bombay High Court came
up with a judgment rejecting the plea filed by two of the sitting Maharashtra
Legislative assembly members, who are currently in judicial custody, wherein it
denied granting relief by disallowing the members to vote in the elections for
Maharashtra Legislative Council, which were being conducted on 20th June 4.
RIGHT TO VOTE FOR UNDERTRIALS
In India, offenders under trial do
not have the right to vote in ambiguous elections as they are not yet deemed
guilty. One of the main core principles of Indian criminal law is that “every
person is presumed to be innocent until proven guilty”. By this logic,
offenders under trial are innocent, which means they should be given the right
to vote. This is not the case which has been happening in the country. The
reasoning given by the court is also very vague and ambiguous. In the landmark
case of Ankul Chandra Pradhan v Union of India[5],
The issue before the court was;
Whether the petition under Art 32 of
the constitutional challenge is made to the constitutional validity of sub-sec
(5) of s. 62 of the Representation of the People Act,
The question is whether the sub-sec
(5) classification of s.62 is reasonable.
The court said that Article 14
permits a reasonable classification which has a rational nexus (intelligible
differentia) with the object of classification. The court went on to say that
there are provisions made in the election law to exclude persons with criminal
backgrounds from the election scene as candidates or voters; the court held
that under trials or convicts were not allowed to vote to prevent the
criminalisation of politics[6].
This decision made by the court was
vague and ambiguous as, first of all, there is no rational nexus in classifying
Convicts and under-trial prisoners together, as one is proven guilty and the
other is not. But on the other hand, persons under preventive detention are given
the right to vote. There is absolutely no rational nexus in the way these
groups are classified.
Those who favour granting voting
rights to prisoners under trial argue that denying prisoners the right to vote
violates their fundamental rights. They argue that denying prisoners the right
to vote violates their fundamental rights, as mentioned before. Prisoners are
still citizens of India and should have the right to vote. Additionally,
denying prisoners the right to vote could lead to discrimination and marginalisation
of certain groups, such as underprivileged and marginalised sections of
society, who are more likely to be incarcerated.
ARTICLE 14
Article 14 of the constitution of
India, 1950 was not a standalone provision in the Draft Constitution, 1948. It
was initially included in draft Article 15 (Article 21), which read:
“Protection of life and liberty and equality before the law - No person shall
be deprived of his life or liberty except according to procedure established by
law, nor shall any person be denied equality before the law or the equal
protection of the law within the territory of India[7].”
The draft was put up for discussion which too almost 2 days and in the letter
sent to the president of the constituent Assembly dated 3rd November 1949, the
draft committee mentioned that - “we have considered it more appropriate to
split this article into two parts and to transfer the latter part of this
article dealing with “equality before the law” to a new article 14 under the
heading “right to Equality”, article 14 was thereby introduced into the
constitution of India, 1950.
Article 14 of the Constitution of
India talks about Equality before the law; the state shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India Prohibition of discrimination on the grounds of religion,
race, caste, sex or place of birth[8].
THE DOCTRINE OF REASONABLE
CLASSIFICATION
has been derived from article 14 of
the constitution of India. This classification was founded on an intelligible
differentia. In the case of the State of West Bengal v. Anwar Ali Sarkar, the
Supreme Court of India stated the twin test for reasonable classification. The
court held that for the classification to pass the test, two conditions must be
fulfilled[9]:
1. Classification must be founded on an
intelligible differentia which distinguishes those grouped from others and
2. The differentia must have a rational
relation to the object sought to be achieved by the Act.
In another famous case of Ram Krishna
Dalmia v. Justice S. R. Tendolkar, AIR 1958, the Supreme Court held that: it is
well established that Article 14 forbids class legislation; it does not forbid
reasonable classification for legislation. It condemns discrimination not only
by a substantive law but also by a law of procedure. Hence, Article 14 forbids
the class legislation but does not forbid reasonable classification; however,
these classifications must not be arbitrary, artificial or evasive[10]. Hence it
has been well established that the doctrine of reasonable classification is
very important in grouping items.
A reasonable classification is
essential in the smooth running of the law system and in ensuring that everyone
is treated equally in the eyes of the law. Such a classification is important
as our law system believes in treating individuals equally. For example, the
same type of tax cannot be levied on everyone, as everyone has a different
amount of income. Although it seems equal, there is inequality, and the tax
should vary according to their economic status.
STEPS TO ENSURE SMOOTH VOTING PROCESS
FOR PRISONERS UNDER TRIAL
? Prisoners under trial can vote from
the jail premises without stepping out of jail through the system of postal
voting, Also called Electronically Transmitted Postal Ballot Papers and under.
These ballot papers are distributed electronically to electors and returned to
the election officers via post[11].
? Prison authorities must inform
prisoners under trial of their right to vote and the procedures for exercising
this right. The authorities must also ensure that prisoners have access to the
necessary facilities to exercise this right, such as voter registration forms,
ballot papers, and polling booths.
? As mentioned earlier, the authorities
can facilitate the voting process by setting up polling booths inside the
prison premises or arranging for prisoners to vote through postal ballots.
? The prison authorities must ensure
the security of the voting process and prevent any attempts at rigging or
tampering with the votes. They must also ensure that the privacy of the voters
is protected.
? Prisoners under trial must also be
given sufficient legal aid and information about the various parties to ensure
maximum accuracy in the voting process.
CONCLUSION
The paper's main objective was to
determine why prisoners under trial should be given the right to vote and how
classifying under-trial and convicted prisoners do not align with reasonable
classification principles. To establish the scope of the Natural law Principle
of "innocent until proven guilty" concerning the "Right to
vote" for prisoners under trial. The author contends that prisoners under
trial are yet to be judged; hence, they are deemed innocent, and therefore,
they should be given the right to vote as innocent people are allowed to vote
as per adult suffrage. The Supreme Court of India has to recognise the right of
prisoners under trial to vote, and it is time for the government to implement
this ruling. The election commission of India should devise a suitable
mechanism to enable these prisoners to exercise their right to vote while
ensuring the safety and security of these prisoners in the ways mentioned in
the research paper.
[1] India Const. Art 326
[2]
legalserviceindia.com/legal/article-7582-all-about-vote-and-voting-rights-in-india.html
[3] 1 NALSAR Stud. L. Rev. 39 (2005) The Fundamentals of
the Right to Vote and Its Constitutional Status
[4]
https://www.livelaw.in/columns/constitution-of-india-prisoners-section-625-representation-of-people-act-right-to-vote-article-191-article14-204959?infinitescroll=1
[5]
https://www.studocu.com/in/document/guru-gobind-singh-indraprastha-university/llb/case-analysis-notes/21135265
[7] https://www.constitutionofindia.net/articles/article-14-equality-before-law/
[9] State of west Bengal V Anwar Ali Sarkar 1952 AIR 75
[10] Ram Krishna Dalmia V S. R Tendolkar 1958AIR 538
Article Information
A Critical Analysis Of The Right To Vote For Prisoners Under Trial In India
Authors: Mathew Michael
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/04
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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