ASSIGNMENT-I

PENOLOGY AND VICTIMOLOGY

THEME- Abuse of Human Rights of Prisoners: Way

Forward

SUB-THEME- Allowing Prisoners to Vote: A Way

Forward To Their Reformation

Submitted By: Submitted To:

Tulika Sharma Sh. Nitesh Bhatt

BBA LLB-Vth Year Prof. Penology &

Victimology

1914292

LWALI19094
ABSTRACT

It is said that somewhere inside all of us there is a power to change the world and this power
is granted to us in many forms one of which is the voting right of an individual. To elect a
representative for the welfare and common wellbeing of each citizen is the greatest of powers
one can have. But as is known that there are two faces of a coin similarly the voting right too
has different facades. Unlike a common citizen, a prisoner is devoid of any such privileges.
Although our criminal justice operates on the scales of equality and fairness, the question of
prisoners being robbed off from their voting rights is a tenacious matter.

It is said that it is for the welfare of the state that these inmates shall be barred from voting
but the very issue here questions the essence of democracy. A prisoner no matter how
inhuman his crimes may be is still a human in flesh and blood and therefore deserves a
chance to elect his representative. As stated earlier that in each one of us their lies power to
change the world, in political sense it is our power to choose the representative. Therefore,
since India operates on the system of retributive justice it is right to punish the offender in the
quantum of which he breaks the law but to snatch some ones right would only deter him from
improvement. This on paper is therefore explores the idea of why is it necessary to allow the
prisoners to vote.

Keywords**: prisoners, voting rights, democracy, justice

INTRODUCTION

Election in India is almost celebrated like a festival. It is when a whooping population of

about ninety crore citizens come together to exercise their one vote, one right but as some
statistics clearly state that about four lakhs of such population are denied the right to vote.
Who are these four-lakh people? It is not like the numbers are so less that it can almost be
neglected but it is a matter of great concern that one of the largest democracies somehow has
such large population which is not exercising their right to vote. This phenomenon has been
given the name of disenfranchisement or blanket ban on the right of prisoners to vote.
Accordingly, the undertrials, detainees and the convicts are the ones excluded from the
general population who cannot vote. Of the 4.83 lakh population the seventy six percent are
undertrials and twenty three percent are convicts1.

For decades petitions have been filed before the court seeking the voting rights of the
prisoners but it is always the same story every time. The altercations always lead to one
answer that prisoners shall not be given the right to vote. Considering the fact that no one is
above law and that questioning/challenging the same would bear no fruits leads to prisoners
losing recognition in the sphere of elections.

When prisoners are granted custodial rights, human rights and almost most of the recognised
then why are we lacking behind the idea of granting them voting right. It true that to condemn
their acts it is necessary to punish them in such manner that they are never to repeat the same
crime ever again. They are cut off from their families and the rest of the society, what greater
punishment can they serve. The most basic question that arises from a brief discussion on this
matter is how actually will granting them voting rights will affect the society? All these
people arguing that disenfranchisement will help the society are the privileged ones sitting at
a superior position deciding the fate of these inmates.

1
An excerpt from https://economictimes.indiatimes.com/news/india/4-83-lakh-indians-in-jail-up-to-2020-end-
less-than-one-fourth-convicts-data/articleshow
 ALLOWING PRISONERS TO VOTE: A WAY FORWARD TO THEIR
REFORMATION

The most important and favourable argument when it comes to enfranchisement is that the
recognition it gives to these prisoners. It acknowledges the fact that the prisoners are still a
citizen even though they are behind the bars and also marks their involvement in the affairs of
the society. As can be considered that taking away their voting rights is more or less
declaring them dead in the eyes of society however short their time in prison may be.
Considering the domestic legislation which bars the inmates from voting, the human rights
standards state otherwise. Under International Covenant on Civil and Political Rights it has
been laid down in Art. 252 that it is the right of all the citizens to vote. The core idea behind
such inclusion beams with the opportunity which is being given to these inmates to improve
and reform themselves. This will only widen their horizon so that they can look beyond their
own interests and think about the betterment of the society.

They say there is nothing as great as democracy. People have laid down their lives for the
flag of democracy to prevail over anarchy and slavery. And so, who are we to pierce the flag
that hoists so high. Democracy has given the power to people, a power that no one and
nothing can ever snatch but again the question of limitation barges in. It is implied that each
right is subject to restrictions in order to keep a check on the misuse of same. Which only
makes sense as democracy does not mean the reign of chaos, it means a reign of clear
instructions and administration with people enjoying certain powers at hand. Considering the
right to vote the greatest of all. it is tool as well as a weapon, tool for those who are
beneficiaries of the same and a weapon for those who know how even a single vote can
change the fate of a nation. Now on one hand where right to vote is a recognised statutory
right for all the citizens, some people are devoid of such rights. On one hand where we
preach that no person shall be devoid of human rights, we snatch away their voting rights. If
one has a right to live with dignity, he also has a right to cast vote and as vague as it sounds,
the contentions that back up this argument are firmer than the objectionable contentions of

2
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2
and without unreasonable restrictions: (b) To vote and to be elected at genuine periodic elections which shall be
by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of
the electors;
the courts that is often of the opinion that to put the prisoners in their right mind, robbing
them off their right to cast votes shall/might lead to their improvement.

In the great dilemma of how and why should prisoners be allowed to vote and, in the debate,
where many of such voters find the idea of letting inmates vote almost paralysing, there are
people who believe that if these inmates are allowed to vote, it will help them inculcate a
sense of responsibility, a sense of reform. People still believe that if we are to follow
reformative theory of punishment then prison should be a place of rehabilitation and not a
place where they are confined and restricted from the opportunities of amelioration.

But imagine a scenario where hypothetically you put yourself in the shoes of a prisoner who
might have committed some petty crimes, now as threatening as it sounds, petty crimes do
not imply that the person is a hardcore criminal and that if he/they are allowed to vote they
might hinder with the criminal justice system. It is only obvious that his actions are being
punished to remind him that his actions can have bad consequences. When locked behind the
bars they are given time for repentance and to introspect that why and how they should
improve themselves and why it is necessary for the government to punish them. Would you
and can you hinder with the system of justice when you are exercising your right to vote?
This idiosyncrasy often leads to the conclusion that prisoners should not be allowed to vote.

By reiterating the earlier mentioned contention, there are people who believe that the when
spending their prison time, there must be enough opportunities created for the healing and
transformation of such prisoners who otherwise were devoid of such environment and thus
which led to them committing such crimes. As surprising and enthralling it sounds, the idea
of rehabilitation aptly provides for such conditions where prisoners are treated so in a manner
that they become a productive and a responsible member of the society. Snatching away the
right to vote only dehumanises them. The right to choose as to who should govern us/them
upholds the essence of democracy which is questioned every now owing to its origin to
Representation Act, 1951.

Whenever the matter of disenfranchisement springs up the judicial decisions always suggest
two broad concernments: that if the prisoners right to vote is acknowledged it would lead to
negative alterations in elements of criminal law and that the banishment of voting rights of
the prisoners is a necessity to protect the sanctity of elections. The most important question
here is to be answered justifiably, firstly it has been argued that these inmates may hinder the
system of criminal law and secondly that the basis of such disqualification is to avoid any
fraud and discrepancies creeping in if prisoners are given their due right to vote. The sole
idea of such blanket ban on voting rights has been given political colours or so can be said
because the reasons as stated above are based on draconian laws. We have come past a lot of
turbulence and with the changing dynamics of the society it is necessary to bring about
changes in the laws as well. Every now and then a petition is filed in the court seeking the
plea to allow prisoners to vote. But the contentions are never acknowledged thoroughly. The
question is all these people who come up with the idea of challenging the ideologies of court,
would it benefit any one of them? They stand there in the belief that these inmates deserve a
right to be represented. And so here is the argument is Section 62(5) of the Representation of
The People Act, 1951 truly unconstitutional? Or the blanket ban on the voting right of
prisoners is a strong resolute to their way forward to reforms?

Considering the definition of who can and who cannot vote under the Act clearly fails to
analyse the fact that it does not draw a line of difference between inmates who can clearly
afford a bail and those who cannot. the view of the court can be understood under the case of
an eleven-judge bench ‘R. C. Cooper v. Union of India’3 the bench conspicuously brushed
off the difference by stating that “It is our contention that there is no rational nexus between
the differentia (the classification between those who can vote and those who cannot) and the
effect of the law (i.e., voting rights for those who can afford bail and refusal of the same to
those who cannot).

In the contemporary scenarios the Apex Court in the case of Anukul Chandra Pradhan
versus Union of India4 can be seen upholding the validity of section 62(5) of The
Representation of Peoples Act, 1951. The same has been upheld on the basis of some
extremely questionable reasoning which were put forward by the Three Judge Bench. Not
only are the reasoning questionable but also does not hold a strong ground. When the matter
was initially pleaded before the court no reasons for upholding the constitutional validity of
Section 62(5)5 was expressed by the them. Considering the constitutional facet of the
prisoners voting right, firstly the right to vote is vested to the citizens of India under Art. 326 6
3
AIR 1970 S.C. 1318
4
AIR 1997 S.C. 2814
5
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.
6

The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of
adult suffrage; that is to say, every person who is a citizen of India and who is not less than 2 [eighteen years] of
of the Indian Constitution in addition to the same section 62 next plays a pivotal legislative
role. In the ordinary sense it expels out the persons who are involved in illegal, criminal, or
corrupt practices from casting votes and thus is based on the idea that taking away their
voting rights based on their actions that are harmful for the society as whole and thus
expelling them from the category of people who are eligible to vote will help in reforming
them. But it is almost unfortunate that there is no conspicuous segregation based on
confinement in prison except for one where a person under preventive detention still has his
voting right intact.

In the view/words of Mr. A.M. Bhattacharjee, one of the eminent judges and Justice of
Bombay HC "... 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..."7

Therefore, it implies that there is great need to differentiate between the prisoners who are
convicted. Which can be done by differentiating them on the basis of the quantum of their
punishment and the gravity of their offence. If a person has a history of repeated offences and
that the person has committed an offence so gruesome that his banishment from the society is
the only resolute then he can be expelled out but on the same facet where a person has say
committed an offence of theft or robbery, forgery or anything of sort then he shall be given
the opportunity to be a part of the election.

Reiterating the case of Anukul Pradhan 8, the counsel meticulously contended that where a
person once if convicted and then sentenced to imprisonment is somehow is granted bail has
the vested right to vote but in the same scenario the person who is sentenced is deprived of
any such right, regardless of his conditions for not being able to furnish a bail, he is devoid of
exercising his franchise. This conspicuously violates the essence of Article 14 9 of the Indian
Constitution which lays down the principle of equality.

age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is
not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground
of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a
voter at any such election.
7
Bhattacharjee, A.M., Equality, Liberty and Property under the Constitution of India, Eastern Law House, New
Delhi, 1997, p. 116.
8
AIR 1997 S.C. 2814
9
The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India
CONCLUSION

The crux of this whole discussion here is that the section 62(5) requires major rethinking and
revaluation. And the major question here is answered. Should prisoners be allowed to vote? Is
not a question anymore but a matter of great concern. Their involvement will not criminalise
the political system. And if so, the government feels that such move might hinder the system
of election then they can pilot test the move before implementing the full-fledged idea of
allowing the enfranchisement. With great powers comes great responsibilities, as cliché as it
sounds it is imperative that when these inmates will be instilled with such responsibilities,
their horizons will be widened. The exposure will only help mobilize the population behind
bars to channel their right of representation.

The constitution clearly lays down the framework where it talks about voting rights of the
Indian citizens and constitution being the supreme document also talks about right for
everyone to be treated with dignity and equality. Therefore, by the operations of the same it
can be concluded that the protection of the rights of the prisoners is to be kept in mind It
become more important for a country like India where all the institutions of the government
lay emphasis on the protection of fundamental, democratic, civil and human rights of the
citizens, to also take care of the right of another section of the citizens who are lodged in
prisons. There should be no blanket ban on the right to vote of the prisoners in India.

d
REFRENCES

1. Sidhic, Abubacker S., “A Critical Analysis on Right to Vote of Prisoners”, Indian Journal
of Law and Legal Research, (2021)
2. Singh, Kavita, “Civil death of prisoner: disenfranchising the prisoner in reality causes his
civil death”, NUJS Law Review, (2008)
3. The Constitution of India
4. The International Covenant on Civil and Political Rights
5. Universal Declaration of Human Rights
6. Denial of Right to Vote to the Prisoners in India: A Critical Analysis, International
Journal of Law Management & Humanities (2022)