Civil Procedure Code (CPC)

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Shree. ( Advocate.)     09 April 2009

Prisoners barred from voting ?

DEAR MEMBERS,

It is an irony in our election law:

 You can contest elections in India behind bars, if your conviction is less than 2 years. But you cannot vote.
SHARE YOUR VIEWS.
And that is because the Representation Of People Act under Section 62(5) does not allow prisoners to exercise their franchise. Of the 3 lakh prisoners in the country, only about 30 per cent have been convicted and are serving sentences. The rest are undergoing trial.

You can contest elections in India behind bars, if your conviction is less than 2 years. But you cannot vote.

And that is because the Representation Of People Act under Section 62(5) does not allow prisoners to exercise their franchise. Of the 3 lakh prisoners in the country, only about 30 per cent have been convicted and are serving sentences. The rest are undergoing trial.



 4 Replies

Y V Vishweshwar Rao (Advocate )     09 April 2009

Yes  Mr Shree !

Recently I have seen  an article in the Hindu Paper, a Kerala DIG of Jails ( Rtd ) clearly expressed that  the right of a  prisioner  to vote is denied , as you suggested the convit -            of below two   years,  can contest   the elction,,,  and can not vote !!!!!   . It is  peccular ,            This  is the  nature of right to Contest &  Right to  vote !  . This  has   to be set right by  parlement by necessary legislation , as I think it its pertaining ot Constitutional Rights. 

V.V.RAMDAS (Advocate)     09 April 2009

Dear Sree,

Your problem is the problem of many. I too in suffocation and not able to under stand the logice behind it. Recently in news you misght have came accross  i.e in IBN 7 T.V Chanel  that a candidate from G.Udayagiri Assembly Constituency is contesting from the Jail.He is UTP.This is in Kandhamal District of Orissa.  The said person is Manoj Pradhan ,candiate from BJP. The nomination and affirmation of Oath after filing the nomination is all a different procedure and eviry thing is inside the bars. More as per the provision of R.P act he cannot vote for himself and not only infrenged contituntional right but also violates human rights. 

Nirali Nayak   21 June 2021

Hello sir, greetings of the day.
Prisoners have been denied right to vote since the beginning. When a public interest litigation was filed before Delhi High Court in Praveen Kumar Chaudhary v. Election Commission of India to give prisoners the right to vote, everyone thought finally prisoners will be able to vote and this issue will have an end to it. But when the court reaffirmed that prisoners do not have a right to vote, thereby upholding the constitutional validity of Section 62(5) of the Representation of the People Act 1951, this issue still continues. Section 62(5) of the Representation of the People Act 1951 states that a person who is confined in a prison, under a sentence of imprisonment or is in the lawful custody of the police, is not allowed to vote at any election. The court justified its ruling by stating that the object behind excluding persons with criminal backgrounds from election scene is to prevent criminalization of politics and maintain probity in elections, and thus, a person who is in prison as a result of his own conduct and is 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. The Supreme Court, in various cases, 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 it. While this is a pure violation of Article 21 of the constitution nothing can be done as of now.
Hope this answers your query.
Regards
Nirali Nayak
Law Student

Umamageswari Maruthappan (-)     27 August 2021

Greetings of the day!

This post is in response to the query posted above.

As you rightly said, in our country, prisoners are barred from exercising their democratic right of voting under Section 62(5) of the Representation of People Act. This provision was inserted right at the time of drafting the statute. Since then, very few lawmakers have stood up to amend and modify it to allow prisoners to cast their votes. Usually, debates on improving prison conditions are limited, where arguments favouring their voting rights find a very little or no space at all. Yet there are some voices in support of the same. For instance, even recently a PIL was filed in Uttar Pradesh, by three students, challenging the Constitutional validity of Section 62(5) of the RPA. However, there has been little impact.

Let's see what are the reasons stated by those who are against providing prisoners the right to vote. This is important because we need to know their perspective too.

1) It is not unconstitutional to deprive a prisoner from casting his/her vote as the same is not a fundamental right but only a legal right conferred by the Government, and the same can be taken away by it at appropriate circumstances.

2) It is a common belief that a person who commits an offence does a wrong by going against the will of the law, and therefore he cannot engage himself in the law making process.

3) A prisoner usually loses many of his rights on committing a wrong, and is provided with only some basic rights that includes right to life, free trial, speedy disposal of case, legal aid, just and humane treatment, etc. Since voting is not considered as the so called basic right, the authorities felt it unnecessary to give it to them.

There might be many more of such reasons, however, I have listed only a few. So, if we go by these Opinions, it is certain that no person who is convicted of an offence shall be allowed to be part of the law making process. However, we do find persons with criminal antecedents standing in Elections. That is, they are being eligible to be the law makers themselves. If this is so, then there is no harm in giving prisoners their right to vote because this right is barred even to undertrials, and in India we have lakhs of such undertrials.

Now, let us also see the reasons why this right should be given to them:

1) Despite being labelled as lawbreakers, these people still continue to be the citizen of our country, and by imprisonment, s/he doesn't lose her/his citizenship. With this, prisoners retain their rights and responsibilities as citizens of a country. Since voting is both a right and responsibility, it is important to allow them to vote as citizens of India.

2) Secondly, it is said that prisoners lose most of their liberties on conviction. However, they are also given some exceptions that includes the right to write. In PUCL vs. UOI (2013), voting was defined to be a medium of expression. Thus, convicts can express their this right through writing too. 

3) A criminal cannot be considered unfit for participating in the democratic process because the commission of an offence would not make a person incapable of making a wise political decision.

4) Barring prisoners from voting would suppress the voices of a considerable percentage of people in India. It makes them powerless.

​​​​Some of the important opinions that can strengthen our arguments in favour of prisoners' right to vote:

1) Trop vs. Dulles (1958): Citizenship is not a right that expires upon criminality.

2) Canada's Highest Court: Voting is not just a representation but also a way through which citizens voice their grievances.

3) European Court of Human Rights: Barring prisoners from voting may harm rehabilitation work since participating in elections may encourage them to become law abiding and responsible citizens.

​​​​​​These opinions and views make it clear that voting isn't just a matter related to the right of prisoners but also is concerned with their freedom of expression. Barring the same will have serious consequences on both the prisoners as well the country. Hopefully, India makes a positive move in this respect, in the near future.

 

Hope this helps!

 

Regards,

Umamageswari Maruthappan

Law Graduate


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