By Jagriti Pandey and Deeptangshu Kar
On 11th February 2020 in Praveen Kumar Chaudhary & Ors. v Election Commissioner of India and Ors., the Delhi High Court re-affirmed the constitutionality of Section 62(5) of the Representation of the People Act, 1951 that deprives prisoners of their right to cast vote in elections. The Section reads, “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 sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”
In its judgment, the Delhi High Court reiterated the importance of the previous judgment of the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court v Union of India & Ors. wherein it was held that Section 62(5) of RPA does not violate the right to equality and the right to life as under Article 14 and Article 21 because the legislature is free to make a reasonable classification and exclude persons from the exercise of their statutory right to vote. The Supreme Court in Anukul Chandra also cited the infrastructural problems in allowing prisoners to vote.
The judgment of the Delhi High Court again brought to fore a multitude of legal and logical anomalies with the provision of Section 62(5) of the RPA and these problems only aggravate in light of the Supreme Court’s judgment in Anukul Chandra.
Dilution of the strength of democracy
The right to vote comprises one of the very basic rights of individuals in a democracy. The Supreme Court of India in State (NCT of Delhi) v. Union of India, 2018 held the right to franchise as the bedrock of democracy:
Thus, democratic set-up has its limbs firmly entrenched in the ability of people to elect their representatives and the faith that the representatives so elected will best represent their interest. Though this right to vote is not a fundamental right, yet it is a right that lies at the heart of democratic form of Government. The right to vote is the most cherished value in a democracy as it inculcates in the people a sense of belonging.
Similarly, in Mohinder Singh Gill v. Chief Election Commissioner, the Supreme Court held:
Nothing can diminish the overwhelming importance of the cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen in choosing his representatives for governing the country.
Read in light of the above two judgments, Section 62(5) of the RPA seems to be a direct attack on the basic democratic values of India. In Anukul Chandra the Supreme Court had held that disallowing prisoners to vote is to ‘prevent the criminalization of politics and maintain probity in elections.’ Seen through this lens, the contesting of elections by prisoners should also have been prohibited because once that prisoner is elected the criminalization of politics is easier by her being in the legislature. Also, the logic that the voting by accused persons out on bail will not result in the ‘criminalization of politics’ whereas the voting by imprisoned undertrials will, is not yet clear.
Punished even before proven guilty
One of the basic tenets of the criminal law and natural justice system is that a person is presumed innocent until proven guilty. Sec 62(5) of the Representation of the People Act renders this principle to be ineffective and invalid. The word “confinement” used at the beginning of the provision of section 62(5) of the Representation of People Act is ambiguous and confusing. This is because undertrial prisoners are also “confined” without their crimes being proven. If the object of this provision is to prevent criminal minds from diluting the whole election procedure and system then why are people who are not even convicted also prohibited from exercising their right to vote? Undertrial prisoners are not declared guilty in a criminal act by any court of law; therefore, preventing them from enjoying their constitutional right to vote is against natural justice and also defeats the whole purpose and object of the provision.
As per the National Crime Records Bureau’s ‘Prison Statistics India, 2018’, out of a total of 4,66,084 prisoners, there were 3,23,537 under-trials and 1,39,488 convicts lodged across 1,339 prisons in India. So, the figure of persons who are wrongly deprived of their constitutional right to vote was more than 3 lakhs in 2018 itself. This is quite a serious constitutional crisis that is being faced by our legal system.
Prohibiting prisoners from voting strikes at the very root of Article 14 because of being “arbitrary” and “unreasonable” in nature. Accused persons who are out on bail can vote whereas the accused persons who by any reasons could not get bail are deprived of their right to vote. Section 62(5) dilutes democracy at the very grassroots level because a plethora of undertrial prisoners are those who are unable to procure the bail bond. The state of being ‘confined’ is very subjective and misleading. It is subject to the financial condition of the family and the background of the accused. If the requisite amount of money can be provided, bail will be granted; otherwise, no means is there for prisoners to exercise their right to franchise. The goal of a policy-driven socio-economic revolution of our constitution cannot be fulfilled until the poorest and vulnerable sections of our society are kept away from the very basic exercise of voting.
The conviction rate of undertrial or accused persons is also very low in India. In IPC offenses, the rate of conviction is around 40%, so it can be logically said that a lion’s share of undertrial prisoners ultimately does not face conviction. A blanket ban on the exercise of the right to franchise wrongly deprives many innocent persons of their right to franchise.
Facing the consequence of the inadequacy of the State
One of the arguments that the courts give whenever a question on the validity of Section 62(5) of the RPA arises is that arranging for the prisoners to vote cannot be possible because of various infrastructural problems. In Anukul Chandra(1997), the Supreme Court observed that for orderly voting in the prisons a heavy deployment of the police force will be needed. The fact that this same logic was followed in Praveen Chaudhary(2020) points to another constant problem i.e., an overburdened police force. As of 2016, there was a vacancy of 5.5 lakhs personnel in State Police forces in India. A big number in the current police force is also not there at the disposal of the masses in the police station but is deployed for security purposes. If the vacancies in the police forces are filled then: first, the problem of the soaring number of undertrials will be solved as the police investigations will be speeded up and; second, the force required to conduct elections for prisoners might also be available.
Another infrastructural problem that is a reason behind the deprivation of the right to vote of prisoners is that the judicial system in India is very slow and tardy and takes a lot of time to decide the fate of an undertrial prisoner. In the meantime, that undertrial prisoner fails to exercise his/her adult franchise for the concerned provision of the RPA, and thus is wrongly denied of his constitutional right.
Given the low conviction rate, it is safe to say that the principle ‘hundred wrongdoers should be freed but not even one innocent should be punished’ is defeated by Section 62(5) of the RPA. It is because of the State’s own inability to take care of the infrastructural problems that the prisoners are deprived of their precious right to vote.
In the various PILs filed before Indian Courts regarding Section 62(5), the violation of article 326 of Indian Constitution, article 21 of Universal Declaration of Human Rights (UDHR), Article 51 of Indian Constitution, article 3 of UDHR is highlighted.
Inhuman conditions, overcrowding, and extremely unhygienic surroundings in jails of India force the prison inmates to live inside them as in hell. Prisons are not meant to be an exasperating journey, but a journey from darkness to light. But unfortunately, the inhabitable milieu of prisons in India has totally defeated the purpose of prison is a place of reformation. There are various problems faced by prisoners inside jails that are issues of fundamental human rights concern, like institutional violence, lack of proper sanitation, food, amenities like newspapers, books, etc. Though there are various human rights and civil society organizations working for prison reforms, these issues can be adequately and rightly addressed by prisoners themselves if they are provided with proper voting rights, because they are the direct stakeholders in the subject of prison reforms.
Different developed countries like Canada, Australia, New Zealand, etc. have proper facilities and legal rights for prisoners to exercise their franchise, and they face no problem in practicing this.
In a robust democracy everyone whether undertrial prisoner or a convicted prisoner should be allowed to vote because their representation is as important as anyone else’s. For example, there are certain criminal provisions that outdated and if an election candidate promises to repeal those criminal provisions if elected, then the representation of prisoners under that criminal provision is necessary. Apart from this, the general representation of any prisoner, convict or not, is necessary because if a crime is against the society then that crime is also a result of various societal conditions.
[The authors are third-year law students at National Law University, Patna.]
The Criminal Law Blog 
In the Praveen Kumar Chaudhary Case, I appeared in person as Petitioner 2. The aforesaid section is inspired from colonial era, vehemently denying the constitutional right.
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