- Chandni Turakhiya
According to the World Prison Brief Data, there are four lakh seventy eight-thousand six hundred prisoners in India 2019.[1] This includes convicted prisoners as well as citizens who are on pre-trial. Innocent till proven guilty, a popular Latin maxim of criminal innocence, which comes under the ambit of Article 20(3) of the Indian Constitution and the Indian Evidence Act, 1782 which explicitly states that-
Section 101: whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.[2]
Section 102, on whom the burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.[3]
This clearly shows that a person in a pre-trial is not a convict and is not guilty till declared otherwise so. Still when it comes to the right to vote the convicts as well as the citizens in pre-trial are level par and denied to vote. The bigger question is why are prisoners not allowed to vote? Are they not citizens? Are they not humans who deserve their basic rights to vote their countries representative? It is first important to understand the laws that bar the prisoners their right to vote.
Sec 62(5) of Representation of the People Act[4], 1951- no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police; provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force.
This has been contested under various articles in past years. In 1997 the Supreme Court in Anukul Chandra Pradhan, Advocate, Supreme Court Vs. Union of India & Ors, it was questioned on the grounds of Article 14 as well as Article 21 of the Indian Constitution that doing so would deny their dignity to life. The Supreme Court upheld the law under RPA explaining-
a) There would be a resource crunch as permitting every person in prison also to vote would require the deployment of a much larger police force and greater security.
b) A person who is in prison as a result of his own conduct cannot claim equal freedom.
c) To keep persons with a criminal background away from elections.[5]
While dealing with the question of fundamental rights the court also stated in Jyoti Basu v. Debi Ghosal that-
“A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, creations they are, and therefore, subject to statutory limitation[6]."
Therefore the court clarifies that the right to vote is not a fundamental right and any remedies for the purpose of fundamental rights cannot be used to question the right to vote.
Now the question arises as stated before that citizens who are under trial or in custody should be allowed to vote?
The Supreme Court reiterates that ‘Criminalisation of politics is the bane of society and the negation of democracy’ [7] But to uphold the same democracy by one law cannot undermine another law and curtail the freedom of speech and expression of those who are not guilty of any crimes for the time being. The fact that they are denied the right to vote is punishing them for a crime they may or may not have committed.
The second question that arises is how can criminals for different crimes all suffer the same in terms of voting. Is there no distinction between petty crimes and dangerous or heinous crimes? If the law itself provides different punishments for different crimes and doesn’t put them under an umbrella term then the restriction of voting should not too be put on all criminals equally. These questions were raised in Public Interest Foundation vs. Union of India.
Now in some countries under trials are allowed to vote and in other countries, a common ground is reached upon such as Australia and Germany the voting rights depend on the type of the offence or the duration they are serving time. While there is no correct way to move forward any change is welcomed.
Ironically, those with a criminal past cannot vote they can still stand as an electoral candidate. While proposing reforms to tackle the menace of criminalization of politics, the Former Chief Election Commissioner, Mr. T.S. Krishna Murthy, highlighted the said issue by writing thus:-
"There have been several instances of persons charged with serious and heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and even getting elected in a large number of cases. This leads to a very undesirable and embarrassing situation of lawbreakers becoming lawmakers and moving around under police protection.”
The Supreme Court in February 2020 has ordered all parties in Lok Sabha must publish an in-depth detailed criminal report of all its candidates which will then be published in newspapers and on the parties social media handle.
A political party should explain to the public through their published material how the “qualifications or achievements or merit” of a candidate, charged with a crime, impressed it enough to cast aside the smear of his criminal background.
A party would have to give reasons to the voter that it was not the candidate’s “mere winnability at the polls” which guided its decision to give him a ticket to contest elections.[8]
This comes as a response to the petition in the case of Public Interest Foundation vs. People of India as it highlighted to alarming rate by which the political parties have backed candidates with heinous past.
The Election Commission as well as the Supreme Court have taken into consideration and have understood the need for transparency as well as the screening of the candidates representing the people. Even though steps are getting taken in the past few years by both EC and SC it’s still miles away from achieving its goal. The decision to not allow at least if not all but some prisoners to vote is a snub to democracy.
Chandni Turakhiya is a second year students at Pravin Gandhi College of Law, Mumbai.
(chandniturakhiya2001@gmail.com)
[1] Prison Statics India, National Crime Record Bureau. [2] Indian Evidence Act, 1782. [3] Indian Evidence Act, 1782. [4] Representation of the People Act, 1951. [5] Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors.,1996 2 SCC 199. [6] Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 at 696. [7] Supra Note 5. [8] Public Interest Foundation and Ors. v. Union of India and Anr, (2019) 3 SCC 224.
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