Do prisoners have the right to vote?

Universal adult suffrage is one of the foundational values of our entire constitutional order. Article 326 of the Constitution of India lays down this principle and states that every person who is a citizen of India and who is not less than twenty-one years of age is not otherwise disqualified on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice must hold the right to vote. Additional statutory limitations imposed by the Representation of People Act, 1951 disqualify all persons in custody from the right to vote, other than those in preventive detention.

When did prisoners lose their right to vote?

The disenfranchisement of prisoners can be traced back to the English Forfeiture Act of 1870 which disqualified individuals convicted of treason or felony. The rationale behind this was that once someone was convicted of such serious offences, they forfeited their rights, including the right to vote.

A similar principle was applied in the Government of India Act of 1935, where individuals serving sentences of transportation, penal servitude, or imprisonment were barred from voting. However, the Representation of the People Act of 1951 adopted a broader approach to defining such disenfranchisement. It specified that individuals confined in prison, serving sentences of imprisonment or life or otherwise detained in lawful police custody, are ineligible to vote. This provision excludes only those in preventive detention.

A judgement by the Patna high court (HC), later upheld by the Supreme Court in 2013, interpreted removal from electoral rolls as the basis for such disqualification. Following this analogy, it was ruled that a person in confinement who is not on the electoral roll, could not contest elections either. These decisions were met with scepticism, because they implied that being taken into custody, even under potentially politically motivated circumstances —which is not uncommon — could disqualify a legitimate candidate from running for office. The late Arun Jaitley, then leader of the opposition, cautioned against the troubling precedent of determining electoral eligibility at the behest of power and police, raising serious concerns about the integrity of the democratic process.

Therefore, an amendment was made to Section 62(5) of the RP Act in 2013 through a proviso that in effect settled that being in custody does not automatically disqualify individuals from the electoral roll. Thus, they can contest elections, but by way of their confinement cannot participate in the voting process.

This has now created a paradoxical scenario where those in custody for offences not otherwise disqualified under the RP act, can contest elections and are also technically eligible voters, yet are effectively excluded due to their confinement.

Data from the Crime in India 2022 report released by the National Crime Records Bureau reveals that approximately over 500,000 individuals, if not more, will be unable to exercise their voting rights in the ongoing 2024 Lok Sabha elections, by way of their confinement.

In 1997, a case brought by advocate Ankul Chandra Pradhan to the Supreme Court led to the top court upholding the constitutionality of Section 62(5) of the RP Act which disenfranchises prisoners. The court cited three primary justifications: One, prisoners forfeit certain freedoms due to their conduct; Two, logistical challenges arise due to increased security needs; and three, the intention to exclude individuals with criminal backgrounds from the electoral process.

Upon closer examination, each of these arguments appears flawed and fails to provide a sound rationale for disenfranchising a significant portion of the population. However, Section 62(5) as it stands after the 2013 amendment, bases the bar on the fact of confinement, and not on their criminal conviction or the gravity of the alleged or proven offence. Persons in confinement are technically sound voters, but it is due to their confinement that they cannot exercise the right.

This aligns with the settled law that prisoners do not forfeit all their freedoms, and, in fact, retain most rights of free citizens except those unavoidably lost due to confinement (Charles Sobraj v. The Suptndnt. Central Jail, Tihar, New Delhi).

Therefore, the apex court's reasoning that prisoners forfeit their equal freedoms due to their conduct, falls short, as it is only the freedom of movement enshrined in Article 19(1)(d) of the Constitution of India that is restricted. Additionally, the aspect of conduct leading to disqualification does not justify why even undertrial prisoners are denied the right to vote. This denial contradicts the fundamental principle of innocent until proven guilty, as undertrial prisoners—merely accused, not convicted—also remain disenfranchised.

Contesting for power, but denied the ballot

Another argument of the SC rests on the intention to exclude individuals with criminal backgrounds from the electoral process. In protecting the purity of the ballot box, the Court compromises the possibilities of reformation and rehabilitation of prisoners - the fundamental goal of modern penology. It takes forward a colonial understanding of punishment that due to a past offence, a prisoner loses the right to vote permanently while in confinement, negating the principles of socio-cultural and political integration.

Moreover, if the integrity of the ballot box is the primary concern, how does one justify the paradox that after the 2013 amendment to the RP Act, individuals deprived of the right to vote are still allowed to run for public office?

Decoupling freedom of movement from voting rights

As electoral systems evolve and inclusivity becomes a priority, it's crucial to consider alternative methods for facilitating political participation among incarcerated individuals like mobile voting units or absentee ballots, already utilised for other demographics.

While acknowledging the challenges in implementing these measures, the crucial first step lies in recognising the fundamental significance of voting rights for prisoners. A disenfranchised population directly undermines the legitimacy of democratic decision-making. Upholding the aspiration of rehabilitation and reintegration, the focus should be on not further marginalising prison populations but providing them with opportunities to meaningfully participate in decision-making processes. The current legal position prioritises punitive measures over democratic values and is potentially detrimental to the country.

To meaningfully realise the constitutional promise of universal adult suffrage, its universality must be protected against disqualifications, which should be narrow and reasoned, to preserve the integrity of the electoral process.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal