Felony Disenfranchisement in a Democratic Nation
“A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” ― Fyodor Dostoyevsky
India, being a democratic nation, denies its prisoners the right to vote. Section 62(5) of the Representation of the People Act, 1951 deprives them of their “legal right” to vote and to be part of the largest democracy in the world. This article explores the rationale behind the ban on their voting rights while discussing the flaws in the present prison system. The global trend of giving prisoners the right to vote has been highlighted and so is the viability of the right, if given, to the prisoners in India.
It has been studied that such felony disenfranchisement has historic roots and its modern precursor is the pre-democratic common law idea of “civil death,” whereby certain offenders forfeit all their civil rights, including rights to property and possessions, rights to inherit and bequeath, and the right to bring suit.[i] This civil death, however, may or may not be fruitful in benefitting the outlaws and integrating them back into civil society. The question of the hour is whether the denial of voting rights as a part of this civil death is justified or not.
Analysing the Global Trend
The United States of America also denies voting rights to prisoners. The law for each state is different. Two states, Kentucky and Iowa permanently disenfranchise people with felony convictions. But the latest trend shows that the US is moving towards a more liberal and progressive approach. A recent example of this would the overwhelming support given by the voters in the state of Florida to allow the incarcerated and ex-felons to cast their vote in the November 2018 US midterm elections. This move re-franchised over a million Floridians.[ii]
The United Kingdom too follows a policy of felony disenfranchisement, and this is manifested in Section 3 of the Representation of the People Act 1983. In the case of Hirst v. United Kingdom[iii], the European Court of Human Rights (ECHR) ruled that the UK’s blanket ban on prisoner’s right to vote was in breach of Article 3 of Protocol No 1 of the European Convention on Human Rights. After over a decade, in 2017, the UK Government came up with proposals to comply with the 2005 ruling. According to these, prisoners on temporary release and at home under curfew would be re-enfranchised.[iv]
The South African Constitutional Court declared in 1999 that vote is a “badge of dignity and personhood” and since then prisoners have been allowed to cast their vote.[v] Voting has to be viewed as a matter of dignity of the individual and it cannot be snatched away arbitrarily. It cannot be taken away on the grounds of public outrage towards the crimes done by convicts.
Moreover, denying prisoners the right to vote would not educate them about the community and the democratic procedure. One cannot command respect for the democratic process from prisoners by disenfranchising them. This was rightly upheld by the Supreme Court of Canada in the case of Sauvé v. Canada (Chief Electoral Officer).[vi] This debate has also been stirring up tabloids in New Zealand where in 2015, Justice Heath declared the ban on voting rights of prisoners to be inconsistent with the New Zealand Bill of Rights Act 1990.[vii] Recently, the decision was upheld by the country’s Supreme Court in 2018.
Several other countries like Romania, Iceland, the Netherlands, Slovakia, Luxembourg, Cyprus and Germany have opted for a middle path: They allow voting subject to certain variables such as the quantum of sentence served and seriousness of crime. [viii] It can be observed that the global trend hints a shift towards a more progressive criminal justice system, which gives prisoners the right to vote. This shift can be attributed to realization that felony disenfranchisement can be traced back to racism and oppression in countries like the US.[ix]
The Dilemma in India
Everyone has the right to cast their vote in the elections held in their country as stated in Article 21 of the Universal Declaration of Human Rights (UDHR). The Constitution of India places the notion of universal adult franchise at its very core. During the British rule, there were a plethora of restrictions on the right to vote which were highly arbitrary. One such restriction that exists even today is denial of voting rights to prisoners.
Analyzing the Existing Legislation
Section 62(5) of the Representation of the People Act, 1951 denies the right to vote to people who are “under a sentence of imprisonment or transportation or otherwise, or is in lawful custody of the police.” Chapter 43 of the Reference Handbook on the General Elections, 2014, excludes undertrials from voting, even if their name is on the electoral rolls.[x] This has attracted severe criticism over the years.
In Anukul Chandra Pradhan v Union of India[xi], the Supreme Court upheld the constitutionality of Section 62(5). However, this decision has since been questioned. The rationale behind the Court’s judgement was voting rights for prisoners will lead to criminalization of politics. However, this argument assumes that the choice of the prisoners will be based solely on penal issues, rather than on political questions.[xii]. It has been argued that Section 62(5) is against universal adult franchise, and against Article 14 of the constitution that guarantees equality. The Constitution allows for intelligible differentia, and the Courts have put forth the argument that treating a person inside jail the same as a free man is unjust. However, by the same logic, an undertrial, whose guilt is yet to be proven, cannot be put on the same pedestal as a convicted prisoner. Former Chief Justice of the Bombay High Court, Mr. A.M. Bhattacharjee has said “… it is neither reasonable nor right and just and fair to deprive an undertrial of his personal liberty by putting him behind the prison, though admittedly and undisputedly his guilt is yet to be, but may not eventually be proved and he has in law all the presumption of innocence operating in his favour…”[xiii] It is also noteworthy that if a person is released on bail, such a person can vote. Essentially, this denies the people who cannot afford bail the right to vote. Recently, a Public Interest Litigation has been filed by a law student, Aditya Prasanna Bhattacharya, challenging Section 62(5) on these grounds.
A Threat to Secularism, Equality and Liberty
It is essential to question whether there exists a caste bias in our prisons. It has been analyzed that people from the marginalized strata are pinned for petty offences and locked behind the bars. According to statistics, approximately 65% of the convicts are either from the OBC category or the Scheduled Caste or Scheduled Tribes category, while 15.8% belong to the Muslim community.[xiv] By denying these people the right to vote, the already secluded section of the society is being outcasted. Such treatment would be detrimental to the secular philosophy of the nation altogether.
The analysis of the demographic profile of prisoners in the country reveal that the system is biased against the underprivileged. Out of the total number of convicts 27.1% were illiterate while 42.9% were educated up to Class X. It is expected that when people aren’t educated and have no just means of earning, they would turn to petty offences to feed their families. They are citizens caught up in the trap of survival due to the lack of proper implementation of educational opportunities for the underprivileged. Moreover, there are 2,82,076 undertrials in comparison to the 1,34,168 convicts lodged in various prisons across the nation.[xv] This raises a serious question on the criminal jurisprudence in the country and the efficiency of the authorities to dispense justice. The doctrine of ‘innocent until declared guilty’ has lost its ground.
The police at times has been known to indiscriminately arrest the accused and there have been unnecessary and avoidable pre-trial arrests. The delay in trial and reluctance of the court to grant bail has also contributed to the high number of “innocent” prisoners behind the bars. The provisions in the statutes have been amended to avoid such instances, like there should be a credible complaint for the arrest[xvi] and the reason for the arrest has to be recorded by the police officer.
Moreover, investigation should be completed within the period specified in Section 167 of the Code of Criminal Procedure, 1973. This is to avoid unnecessary physical and mental agony caused to the accused. The number of cases pending in the courts of the country are piling up with each passing year which has led to an alarming situation. This is a violation of the right to a speedy trial under Article 21 of the Constitution. Due to inefficiency of the system and the lack of knowledge amongst the masses, many under trial prisoners often end up spending more than half the time of sentence of the crime they are being tried for. In such a case, the accused will be allowed to be released on bail with or without sureties.[xvii]
Right to vote not being a fundamental right has been a major concern for the judges of the Hon’ble Supreme Court as well. The PUCL case[xviii] judgement states that the action of voting is a fundamental right in the sense that a person has the right to “express” his vote and this falls within the ambit of Article 19(1)(a) of the Indian Constitution, whereas the right to vote remains a legal right under Article 326. However, this does not match up to the level of importance that right to vote deserves in a democratic nation.
The motive behind the punitive measures meted out to convicts is to rehabilitate them into mainstream society. This is to ensure that they can be a productive part of the society again. Allowing them to vote would be a step in that direction. People who are considered to be a constant threat to the well-being of the society are already given life sentences which disables them from further causing harm, however, those who aren’t, are expected to re-integrate into the society. In the Indian context, people being deprived of their right to vote are either “innocent” accused undertrials or people from the marginalized strata of the social ladder. It is of imperative importance to analyze whether this is justified on legal grounds and on the common sense of judgement of a rational man. The issue has already been analyzed from both perspectives in the article and it can be concluded that such a blanket ban on the voting rights of prisoners is unnecessary and is an impediment to the democratic structure of our nation. CJI Misra once wrote “The right to vote is the most cherished value of democracy as it inculcates in the people a sense of belonging” [xix] and this sense of belonging should extend to people behind the bars as well.
[i] J. Kleinig and K. Murtagh, “Disenfranchising Felons”, Journal of Applied Philosophy, Vol. 22, No. 3, 2005, pp. 217-239.
[ii] Shivanshi Asthana, “Should India’s 400,000 prisoners get to vote in the 2019 election?” (2019) Quartz India, available at https://qz.com/india/1573171/india-elections-2019-should-prisoners-be-allowed-to-vote/ (last accessed 15 June 2019).
[iii] Hirst v. United Kingdom, (No 2) (2005) ECHR 68.
[iv] N. Johnston, “Prisoners’ voting rights: developments since May 2015” (2019) House of Commons Library,
available at https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7461 (last accessed 15 June 2019).
[v] P. de Vos, “South African Prisoner’s Right to Vote”, Civil Society Prison Reform Initiative, 2004, at https://acjr.org.za/resource-centre/South%20African%20Prisoners%20Right%20to%20Vote.pdf (last accessed 12 June 2019).
[vi] Sauvé v. Canada (Chief Electoral Officer),  3 SCR 519.
[vii] Dr Edward Willis, “Prisoner voting rights measure of democracy”, The University of Auckland, New Zealand,
available at https://www.auckland.ac.nz/en/news/2018/12/18/prisoner-voting-rights-measure-democracy.html (last accessed 12 June 2019)
[viii] Supra note 2.
[x] Schedule for General Elections 2014, Election Commission of India, available at https://mea.gov.in/Uploads/PublicationDocs/23192_Election_2014.pdf (last accessed 15 June 2019).
[xi] Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
[xii] N. Prakash and M.Yashasvi, “Disenfranchisement of Prisoners”, Cochin University Law Review, Vol. 22, No.3, 1998, pp. 333-339 available at http://dspace.cusat.ac.in/jspui/bitstream/123456789/10912/1/Disenfranchisement%20of%20prisoners.PDF (last accessed 15 June 2019).
[xiii] A.M. Bhattacharjee , “Equality, Liberty and Property under the Constitution of India”, Eastern Law House, 1997, p. 116, available at http://www.jstor.org/stable/43953330 (last accessed 15 June 2019).
[xiv] Prison Statistics India 2015, National Crime Records Bureau, at http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11-2016.pdf (last accessed on 10 June 2018).
[xvi] The Code of Criminal Procedure, 1973, s. 41(1)(a).
[xvii] The Code of Criminal Procedure, 1973, s. 436A.
[xviii] People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1.
[xix] Government of NCT of Delhi v. Union of India & Another, C. A. No. 2357 of 2017.
By Kavya Jha and Palak Kapoor, Associate Editors, RSRR