The government is set to introduce e-voting for the over 11 million NRIs pursuant to the recent Supreme Court order in Nagender Chindam vs Union of India, directing the Central government to facilitate e-ballot voting for NRIs within eight weeks. The government, the court and the Election Commission, therefore, all seem to be on board with extending voting rights to a greater class of Indian citizens.
Should this right also be extended to another, albeit different, class of Indian citizens, namely, undertrial prisoners? Should the likes of Binayak Sen, or even Pappu Yadav, Mohammad Shahabuddin and Liaqat Shah have been allowed to vote when they were in jail, pending trial? The law is clear: undertrials cannot vote. This means more than 7,200 undertrials (based on the 2013 NCRB data) were unable to exercise their right to vote in the Delhi assembly election. I argue that this position of law is incorrect. Regardless of the nature of the alleged offence, undertrials should not be denied voting rights.
Section 62(5) of the Representation of the People Act, 1951 governing the “right to vote”, stipulates that no person shall vote in any election if they are confined in a prison “under a sentence of imprisonment or transportation or otherwise” or are in the “lawful custody” of the police. Chapter 43 of the Reference Handbook on the General Elections, 2014 also makes it clear that “undertrial prisoners” are not eligible to vote, even if their names are on the electoral rolls.
Undertrial prisoners are persons who have not been convicted of the charge(s) for which they have been detained, and are presumed innocent in law. NCRB’s latest figures reveal there are 2,78,503 undertrials in prison today, constituting more than two-thirds (67.6 per cent) of our prison population. Depriving such a large class of Indian citizens of this important civil and political right is flawed for many reasons.
First, Article 326 of the Constitution only permits the disqualification of a voter under the Constitution or a law on the grounds of “non-residence, unsoundness of mind, crime or corrupt or illegal practice”. It would be a stretch to suggest that “crime” includes suspicion of a crime and/ or undergoing trial in respect of a crime. Therefore, the current practice of conflating undertrials with convicted prisoners in depriving them of voting rights is clearly incorrect. Worse, as the Reference Handbook clarifies, the disenfranchisement is limited to undertrials in prison, and does not extend to persons who are out on bail while awaiting trial. When we consider that many undertrial prisoners remain in jail because of their inability to pay the requisite bail bond, access legal aid, their ignorance about their rights, or simply because they have been forgotten, the current practice is also patently unreasonable.
Second, we need to re-examine the aims being pursued by disenfranchising undertrials. We unquestioningly believe that prisoners (and undertrials) follow a different rights regime, which reflects the existing realities of prison administration because “a person who is in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech and expression with the others who are not in prison” (Anukul Chandra Pradhan vs UoI).
Age restrictions on voting are justified on the basis of the electorate’s capacity of independent decision-making and residence/ citizenship requirements are explained by the requirement of community membership or bonds. What explains restrictions based on one’s status as an undertrial? The reasons that justify pretrial incarceration cannot justify withdrawing undertrials’ right to vote. Pretrial detention is premised on the perceived dangerousness of the accused or the likelihood of interference with trial.
However, given that provisions can be made to facilitate voting from prisons, these reasons are not good enough to disenfranchise undertrials.
Third, excluding undertrials from political participation and treating them as secondary citizens negates their civic capacity and revokes their social status. The symbolic separation of undertrials, as disenfranchised members of society, in addition to their physical separation from the community only serves to alienate them, and identify further with their fellow convicted inmates.
Finally, practical arguments, such as “resource crunch” or administrative inconvenience allow us to sidestep the principled arguments for disenfranchising undertrials. Just as there are logistical problems and expenses involved in extending the franchise to NRIs via e-ballot voting or conducting elections in remote villages, there will, of course, be similar issues with undertrial voting. The right to vote imposes a positive obligation on the state to make proper arrangements to ensure its effective exercise. Undertrials should not be disenfranchised merely because their imprisonment makes it easier to ignore them.
The validity of depriving undertrials of their voting rights is not just a theoretical or academic discussion. As the 7,221 resident undertrial prisoners in Delhi will tell you, it is an important issue, with grave practical consequences.
Most debates on voting rights, whether for undertrial prisoners or NRIs, frame the issue incorrectly. We ask whether the right to vote should be extended to undertrials. Instead, we must ask ourselves whether there are legitimate justifications for depriving undertrials of their right to vote.
The writer is a consultant with the Law Commission