Asmita Sharma
Prisoners’ disenfranchisement is commonly understood as the denial of voting rights to the prisoners. India under Article 326 of her constitution recognises the universal adult suffrage and empowers Parliament to enact law governing this sphere. The section 62 of The Representation of People Act 1951which although is called the right to vote, lays down who cannot vote. The prisoners and those under police custody are debarred from voting while those under preventive detention are entitled to cast their votes. This disenfranchisement policy of India is not well-founded and is in conflict with the changing global positions, while Europe has been liberalising its disenfranchisement policy, and country like Canada providing for the mobile polling booths inside the prison premises to facilitate the voting by prisoners and even allowing the political parties to campaign inside the prisons, India still is turning nelson’s eye to it. The overcrowding of prisons, the poor budget for health and care for prisoners are some of the issues that reflect the apathy of lawmakers towards the prisoners who although consists of citizens are not the constituents of their vote bank. One sitting outside the prison and never been a victim of criminal justice system may feel like that she is in a better position to decide the fate of those inside the prisons but a lot of us do not even realise the difference between the undertrials, convicts and detenue and for lot of people those inside prisons are just criminals.
I don’t blame them since while the Prisons Act, 1894 classifies prisoners and also under trials are treated differently from convicts, no categorisation or difference is seen in context of their voting rights and blanket ban is put upon their right to vote. The 76.12% of prisoners in India are the under-trials, only 23.05 % are convicts and rest 0.73% are detenues When the disenfranchisement was challenged on grounds of equality in Anukul Chandra v UOI, three reasons were given for the disenfranchisement; firstly, it is in interest of free and fair elections that those with the criminal mindset should be kept out of the election scene, Secondly, those inside and outside prisons form a separate class, thirdly, resource crunch involved, considering the elections have to be conducted inside prisons.
The attribution of criminal mind-set to the under trial prisoners is very anti-thesis of the presumption of innocence also when the major prison reforms which lead to the formulation of All India Jail Manual was an outcome of letter addressed by the prisoners to the court. Moreover the likelihood of the criminalisation of politics involved in giving voting rights to prisoners is much lesser than that is involved in giving rights for contestation of elections, which is prevalent. The voters have to choose from the limited number of those candidates contesting election, if only a check is kept from the perspective of contestation rather than voting, the criminalisation of elections can be prevented.
Moreover the basic principles of popular government and the democracy rests on the fact that it should be the people who decide whom they want to be governed by and not the Government who decides who their voters should be. Imagine, how easy tomorrow it would be for the Government to target those acting against its ideology by simply putting them inside jails with no fear of losing elections or vote bank. It is not surprising that the disenfranchisement has often been used as a tool of politics and suppression even during the colonial era be it the special requirements to be met to be eligible to vote in case of persons belonging to lower caste in the then caste system or for women or by making only the 3-10% of Indians as eligible tovote.
The second reason that those inside and outside prisons form class in itself fails when those in police custody are also denied the right to vote. Moreover the constitution empowers parliament to restrict the right to vote on the basis of crime and not on the basis of confinement. For that matter even if those under preventive detention are at separate stage of criminal justice system nonetheless, they are arrested on apprehension of crime and ironically there is no attribution of criminal mind-set to them in context of their voting rights. Third argument of resource crunch if accepted can later be used as a precedent for the Government to avoid conducting elections or fulfilling its constitutional duties. . It is also pertinent to note that the adult suffrage was included as a separate constitutional provision despite so many challenges and was not included under the directive principles of state policy which were considered ideal and non-enforceable due to the resource crunch at that time. This is evident of the fact how much universal adult suffrage was cherished by constitution makers even at that time which should now progress with time. The significance attached with the universal adult suffrage was also highlighted by kandubhai k. Desai as an important provision for the fulfilment of the aspirations provided under the Part III of the constitution.
Even though the right to vote is not recognised as a fundamental right but the right to make choice by means of ballot is part of freedom of expression. The reason often contended for the purpose of prisoners’ disenfranchisement is to avoid the criminalisation of politics. This argument reflects that what legislature is limiting is not the right to vote but the exercise of right to vote in a certain manner based on a particular mind-set and inclination. Moreover the purpose of criminal justice system is to reform the citizens, the enfranchisement of prisoners would help in this process by inculcating in them the democratic values, teaching them the healthy ways of expressing their disagreements with the policies or laws rather than by acting against it or deviating from it. As Nelson Mandela once said that;’ no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones’. Likewise, it is important for us to now look inside our jails.
(The author is LLM)
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