WHETHER OR NOT UNDER TRIAL PRISONERS SHOULD GET THE RIGHT TO

VOTE IN INDIA?

All the prisoners shall retain the human rights and fundamental freedoms set out in UDHR,
ICESCR, ICCPR and other United Nations Covenants, except for those limitations that are
demonstrably necessitated by the fact of incarceration1.

Article 21 of Universal Declaration of Human Rights (UDHR) provides that everyone has the
right to take part in the government of his country, directly or through freely chosen
representatives. Article 25 of International Covenant on Civil and Political Rights (ICCPR)
provides for right to vote and Article 2 states that “no distinction should be made based on
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.” ‘Other status’ here may include the status of being a prisoner,
and hence, there should not be any distinction on any of the grounds aforementioned,
including being a prisoner, in granting the right to vote.

India is a signatory to UDHR and ICCPR and Article 51(c) of the Constitution of India 1950
mandates respect for treaty obligations. Precluding prisoners and under-trials from voting
violates the basic principles of UDHR and ICCPR, thereby violating Article 51(c) of the
Constitution because right to vote cannot be said to be a limitation that is demonstrably
necessitated by the fact of incarceration.

The Supreme Court, in various decisions, have held that right to vote is neither a
constitutional right nor a fundamental right, rather it is a legal right, created by statue and
subject to the limitations imposed by it2.

In a contrasting judgment, Supreme Court in 2003 has held that right to vote, though not
fundamental right, but certainly is a constitutional right because the right originates from the
Constitution mandate contained in Article 326 and it has been shaped by the statute, i.e. the
Representation of People Act 19513.

Right to vote for prisoners is a step towards shaping our criminal justice system into a caring,
reform-oriented institution, one that abides by the universally accepted human rights values.

1
UN General Assembly, Basic principles for the treatment of prisoners: resolution/ adopted by General
Assembly, 28 March 1991.
2
N.P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64; Jyoti Basu v. Debi Ghosal 1982 (3) SCR 318.
3
People’s Union of Civil Liberties v. Union of India, AIR (2003) SC 2363.
The treatment of prisoners should emphasize not their exclusion from community, but their
continuing part in it4. To deny inmates the right to vote is to lose an important means of
teaching them democratic values and social responsibility and removes a route to social
development and undermines correctional law and policy directed towards rehabilitation and
integration5.
The issues like custodial violence, overcrowding in prisons, and lack of facilities can never be
dealt with completely if prisoners are not made stakeholders in the democratic voting process.
A blanket ban on voting rights is a violation of the spirit and soul of the Constitution

There must be a balance between the possibility of excluding ‘unworthy’ citizens from
exercising their right to vote and the requirement of not depriving them disproportionately of
a fundamental right, i.e. ‘a discernible and sufficient link between the sanction and the
conduct and the circumstances of the individual concerned is required6

That the Government of India Act 1919 under title ‘Rules for the Legislative Assembly’ and
under sub heading ‘Right to vote’ Section 8 provides for voting rights for every person
registered on the electoral roll for the time being in force for any constituency.

That the Act further provided that persons who were convicted of an offence under Chapter
IX-A of the Indian Penal Code punishable with imprisonment for a term exceeding six
months or is reported by the Commissioners holding an election inquiry as guilty of a corrupt
practice as specified in Part I, or in paragraph 1, 2 or 3 of Part II, of Schedule IV to these
rules, his name, if on the electoral roll, shall be removed there from and shall not be
registered thereon for a period of five years from the date of the conviction or the report, as
the case may be, or if not on the electoral roll, shall not be so registered for a like period was
provided under Section 5(2) of the Act.

That the Government of India Act 1935 under Chapter 2, Schedule VI, Part I, Section 9
debars person from exercising their voting right at any election in any territorial constituency,
if he is for the time being undergoing a WWW.LIVELAW.IN sentence of transportation,
penal servitude, or imprisonment. The true copy of Provision as to Franchise Chapter 2,
Schedule VI, Part I is annexed hereby as ANNEXURE P-5 18. That from 1919 to 1935 the
word “convicted” was broadened to include person undergoing a sentence or transportation
penal servitude, or imprisonment. 19. That the Government of India Act 1935 set out the
precedent for Section 62(5) of the Representation of the People Act 1951, but the precedents
4
Rule 88(1), UN General Assembly, United Nations Standard Minimum Rules for the treatment of prisoners
(The Nelson Mandela Rules).
5
Sauve v. Canada (Chief Electoral Officer) (2002) 3 S.C.R. 519
6
Hirst v. The United Kingdom (No2) (2005) ECHR 681.
should not be allowed to retain its status or allowed to dilute the vote of every citizen in
Democratic, Socialist and Republic India. 20.

That Hon’ble Chief Justice Dipak Misra Joseph Shine v. Union of India 7, has observed that:
“the progression in law and the perceptual shift compels the present to have a penetrating
look to the past. When we say so, we may not be understood that precedents are not to be
treated as such and that in the excuse of perceptual shift, the binding nature of precedent
should not be allowed to retain its status or allowed to be diluted.”

That the Section 62(5) of the act debars a person is confined in a prison, whether under a
sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the
police. The proviso appended to the section excludes person subjected to preventive detention
under any law for time being in force. The second proviso was added by Representation of
the People (Amendment and Validation) Act, 2013 provides that prohibition to vote under
sub section (5) of Section 62 does not ceases to the electors name from electoral roll.

That providing the prisoners right to vote will serve as the “natural defenders” of their own
interest. Further providing the voting rights will make prisons as a part of a constituency and
seek ways to improve prison and jail conditions from those whom they will vote for. That
more and more politicians will look to reform our criminal justice system, and this would be
a common sense way to help them identify needed changes. Thus it will provide the ability to
move prisons in a new direction.

That the contention Section 62(5) of Representation of the People Act 1951 is violative of
Article 14, 19(1) (a) and 21 of Constitution of India as it is arbitrary, unreasonable and unfair
because universal adult franchise is important not only for nationhood and democracy
although the vote of each and every citizen is a badge of dignity and personhood.
That the Section 8(3) of Representation of People Act 1951 does not disqualifies a person
from contesting an election if he has been convicted and sentenced to an offence
imprisonment for less than two years.

That the denying prisoners from exercising their right to vote eliminates them from
participating in fundamental democratic process and thus causing “civic death”—a
suspension of normal rights as citizens while they are behind bars. Everyone is equally
worthy and entitled to vote as imprisonment must remain as a means to an end and not an end
in itself and prison should be a means to reform and not to alienate their right based on
arbitrary and unreasonable ground. .

7
Joseph Shine v. Union of India, 2018 (11) SCALE 556
That the restriction imposed on prisoners either awaiting for trial or during trial or convicted
from voting is contrary to right to freedom of expression which is live wire of democracy.

That Justice VR Krishna Iyer has rightly observed that “In our world prisons are still
laboratories of torture, warehouses in which human commodities are sadistically kept and
where spectrums of inmates range from driftwood juveniles to heroic dissenters.”

.That the Article 51 of Constitution of India requires the State to endeavour to “foster respect
for international law and treaty obligations.” That Article 21 of Universal Declaration of
Human Rights (UDHR) provides for the equivalent free voting procedures and which shall be
by universal and equal suffrage. Further Article 3 provides equal right of men and women to
the enjoyment of all civil and political rights, Article 25 of International Covenant on Civil
and Political Rights (ICCPR) guarantees the right to vote and free expression of the will of
the electors. That the Section 34, 35, 36 of Chapter VII of Prisons Act 1894 provides that
prisoners can work and follow any trade or profession with Superintendence’s permission for
their development of nation. Then it’s irrational and unjustifiable to deny them the right to
vote within the jail itself.

That the Respondents No. 1 to 3 if concerned about the prisoner’s right to cast and participate
in election process of Democracy Republic India from jail premises itself and it can be an
opportunity to move them in a reformative and rehabilitative path.
That the participation in voting process from jail cannot increase the criminalisation in
politics and it will be one of the cherished right of our Constitution.

Because the impugned Section 62(5) of Representation of the People Act, 1951 violates the
concept of equality, expression, hence, in breach of the basic structure of the Constitution.
Because the impugned Section fail to consider that Article 14, 19(1) (a) and 21 of our
Constitution which are golden triangle, and three stand between the heaven of freedom and
the abyss of unrestraint power.
Because this Hon’ble Court in Jyoti Basu v. Debi Ghosal 8, while observing that freedom of
voting as distinct from right to vote is thus a species of freedom of expression has held that:
“initially right to vote cannot be placed on the pedestal of a fundamental right, but, at the
stage when the voter goes to the polling booth and casts his vote, his freedom to express
arises. The casting of vote in favour of one or the other candidate tantamounts to expression
of his opinion and preference and that final stage in the exercise of voting right marks the
accomplishment of freedom of expression of the voter. That is where Article 19(1) (a) is
attracted.
Because this Hon’ble Court in People's Union for Civil Liberties and Ors. v. Union of India,
(2009) 3 SCC 200 has held that: “Under our Constitution, Article 19(1) (a) provides for
8
Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691
freedom of speech and expression. Voter's speech or expression in case of election would
include casting of votes, that is to say, voter speaks out or expresses by casting vote.” It is
further submitted that denying the right to vote to prisoners is against the precedents set up by
this Hon’ble Court and this level of violation of fundamental right makes the impugned
Section 62(5) as arbitrary and unconstitutional.
E. Because this Hon’ble Court in G. Narayanaswami v. G. Pannerselvan,(1972) 3 SCC 717
has held that: “a voter who is otherwise eligible to cast vote to elect his representative has
statutory right under the Act to be a voter and has also a fundamental right as enshrined in
Chapter III. Merely because a citizen is a voter or has a right to elect his representative as per
the Act, his fundamental rights could not be abridged, controlled or restricted by statutory
provisions, except as permissible under the Constitution.”
F. Because this Hon’ble Court C. Narayanaswamy v. C.K. Jaffer Sharief, 1994 Supp (3) SCC
170observed that: “It also requires to be well understood that democracy based on adult
franchise is part of the basic structure of the Constitution.”

G. In People's Union for Civil Liberties and Ors. v. Union of India, (2009) 3 SCC 200 this
Hon’ble Court discussed the importance of vote in a democratic election in Sir Winston
Churchill’s words: “At the bottom of all tributes paid to democracy is the little man, walking
into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount
of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of
the point.”
H. Because this Hon’ble Court in Francis Coralie Mullin v. The Administrator, Union
Territory of Delhi & Ors., (1981) SCC 1 608 has held that the prisoner or detenu has all the
fundamental rights and other legal rights available to a free person, save those which are
incapable of enjoyment by reason of incarceration.

I. Because this Hon’ble Court in 9 judges bench in Justice KS Puttaswamy v. Union of India,
(2017) 10 SCC 1 has inter alia has held that right to life under Article 21 of Constitution of
India includes right to live with dignity which cannot be restricted to mere animal existence.
It means something much more than just physical survival. Therefore the prisoner has all the
fundamental rights and other legal rights available to a free person, save those which are
WWW.LIVELAW.IN incapable of enjoyment by reason of incarceration. A prisoner is not
stripped of his fundamental or other legal rights.

J. Because this Hon’ble Court in Indian Young Lawyers' Association v. State of Kerela, 2018
(13) SCALE 75 through Hon’ble Justice DY Chandrachud has observed that 'individual was
the basic unit of the constitution' and that 'constitution had a transformative vision which
demands that existing structures and laws be viewed from the prism of individual dignity.'
K. Because this Hon’ble Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 228,
provides that a law enacted by State seeking to deprive a person of his personal liberty under
Article 21 must not be arbitrary, unfair or unreasonable.
L. Because the impugned Section violates the fundamental right of equality by denying them
to exercise their vote on unreasonable ground. The words Justice – political, Liberty –
thought, expression in Preamble sets the tone and temper of our living document. The
concept of equality is a necessary corollary of Rule of Law. Therefore the impugned section
thwarts the concept of equality envisaged under Article 14 of our Constitution.
Because this Hon’ble Court in EP Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 it had
held that equality under Article 14 of our Constitution had a substantive content which,
simply put, was the antithesis of arbitrariness which pervades the entire constitutional scheme
and is a golden thread which runs through the whole of the fabric of the Constitution. There is
vagueness in denying the right to vote of prisoners or person detained in lawful police
custody or otherwise but allowing them to contest elections during prison. There can be no
rule of law, if there is no equality before the law.
N. It is further submitted that first proviso of Section 62(5) provides voting rights to person
detained under any preventive detention law for the time being in force but sub section (5) of
Section 62 denies a person under prison to cast their vote. Thus this is an overwhelming
violation of the basic feature of equality enshrined in Article 14 of the Constitution.

O. The expression "or otherwise" in sub-section (5) of Section 62 denies voting right even to
undertrials and other persons detained in a prison for any reason, including the reason of
inability to furnish bail. The restriction applies to a person in lawful custody of the police
which would include a person detained during investigation before a chargesheet has been
filed against him. On the other hand, a person convicted and sentenced to imprisonment but
released on bail is permitted to vote. This is manifestly arbitrary and unreasonable
classification carved out among the person in prison vis-à-vis person detained under
preventive detention law and discrimination and violate Article 14 of Constitution of India.
P. Because this Hon’ble Justice RF Nariman in Shayara Bano v Union of India, (2017) 9 SCC
1 has held that that manifest arbitrariness is a component of Article 14. Hence, a law which is
manifestly arbitrary would violate the fundamental right to equality: “The thread of
reasonableness runs through the entire fundamental rights chapter. What is manifestly
arbitrary is obviously unreasonable and being contrary to the rule of law, would violate
Article 14.”

Q. Because the denial of voting rights will ostracize the prisoners from mainstream political
decision making of world’s largest democracy. Thus prisoners bereft of right to vote have
deprived them from broader fundamental duties enshrined under Article 51A of our
Constitution of India.

Maneka Gandhi v Union of India, the Supreme Court observed that the procedure
prescribed by law for depriving a person of his life and personal liberty must be ‘right, just
and fair’ and not ‘arbitrary, fanciful and oppressive’.
It also held that otherwise, it would be no procedure, and the requirement of Article 21
would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same
significance in India as the ‘due process of law’ clause in America.

Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration said:

“(though) our Constitution has no due process clause (but after Maneka Gandhi’s case) the
consequence is the same, and as much as such Article 21 may be treated as counterpart of
the due process clause in American Constitution.”

Murli S. Deora v. Union of India, the Supreme Court of India observed that the fundamental
right guaranteed under Article 21 of the Constitution of India provides that none shall be
deprived of his life without due process of law.

Kharak Singh v. State of Uttar Pradesh[i], the Supreme Court quoted and held: By the term
‘life’ as here used, something more is meant than mere animal existence.

Sunil Batra v. Delhi Administration[vii], the Supreme Court observed that the “right to life”
included the right to lead a healthy life so as to enjoy all faculties of the human body in their
prime conditions. It would even include the right to protection of a person’s tradition,
culture, heritage and all that gives meaning to a man’s life. It includes the right to live in
peace, to sleep in peace and the right to repose and health.