Prisoners Right To Vote

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CHAPTER-I
I. INTRODUCTION
―Whoever, in an otherwise popular government, has no vote, and no prospect of obtaining it,
will either be a permanent malcontent, or will feel as one whom the general affairs of society
do not concern; for whom they are to be managed by others; who has ―no business with the
laws except to obey them,‖ nor with public interests and concerns except as a looker-on.‖11
John Stuart Mill, Considerations on Representative Government
―In my country we go to prison first and then become President.‖2
Nelson Mandela, Long Walk to Freedom
1.1 DEMOCRATIC VALUES IN DEMOCRACY
When India got independence in 1947, it was to function as an Independent Democratic

Republic Socialist Secular system. The framers of the Indian constitution had dreamt of an
India which gives equal treatment to all irrespective of any distinction on any regard whether
it be on caste, creed, class, sex, religion or any other basis. Such right to equality included the
right to vote. The paper aims to deal with the basic recognized human right, i.e. right to vote
for prisoners by critically analyzing the position currently prevailing in India and reforms
sought to be achieved. Further the paper also briefly addresses on the right to vote of the
prisoners, as being inalienable and fundamental which is inherent in the democratic roots of
this country. Imprisonment must remain as a means to an end and not an end in itself.
Punishment should be a means to reform and not to negate citizenship. Imprisonment should
be seen as a punishment in itself which curtails the basic right to liberty of a citizen and
debarring them from their right to franchise is an extra punishment which is unreasonable and
unappreciable3.
Democracy means for the people of the people and by the people. The inherent consideration
of a democratic setup is social equality, where people choose their representatives to form
government not to rule them but to administer them. Also Article 14 of the Indian
Constitution upholds this principle of equality. Democracy as a system of governance
1
Mill 1861: chapter 8
2
Mandela, Long Walk to Freedom (1995); quoted according to http://en.wikiquote.org/wiki/Nelson_Mandela
3
http://alexis.co.in/preshti/democracy-and-a-prisoners-right-to-vote/
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is supposed to allow extensive representation and inclusiveness of as many people and views
as possible to feed into the functioning of a fair and just society. The definition of democracy
is incomplete unless it is defined in social and individual contexts.
Democratic ideals represent various aspects of the broad idea of ―government of the people,
by the people and for the people.‖ They include political characteristics that can be seen to be
intrinsically important in terms of the objective of democratic social living, such as freedom
of expression, participation of the people in deciding the factors governing their lives, public
accountability of leaders, and an equitable distribution of power. Therefore, when we say
Indian democracy, we mean not only that its political institutions and processes are
democratic but also that the Indian society and every Indian citizen is democratic, reflecting
basic democratic values of equality, liberty, fraternity, secularism and justice in social sphere
and individual behaviour.
Democratic governance, the term recently added to the vocabulary of politics, signifies more
than what the two words signify separately. A compound is not what its constituents are.
From the term itself it is clear that democratic governance is not merely being democratic as
it is usually understood in its minimalist sense as government of people‘s representatives
elected in a free and competitive situation; nor is it merely governance as one of limited
government charged with the task of enforcement of law and order, and overseeing the
contracts among individuals living in a state or to facilitate, promote and regulate markets.
Democratic governance is a condition in which the promise of justice, liberty and equality is
realized in a democratic political framework, where the government is sensitive to the
people‘s identities, aspirations and needs and where people feel secure and content.
India is proud to be the largest democracy in the world. For more than sixty-five years, we
have witnessed the conduct of successful elections, peaceful changes of government at the
Centre and in the States, people exercising freedom of expression, movement and religion. At
the same time, we quite often experience rampant inequalities, injustice or non fulfilment of
social expectations.
RIGHT TO vote is perhaps the simple most right. As such it is known to every citizen. And
yet the inherent value of this right still remains unexplored and unknown. May be due to
unknown value of this right, the percentage of voters actually visiting the polling booth to
cast their votes is not very encouraging. With a view to strengthening the functioning of
democratic system of government, the intrinsic value of the right to vote in terms of its nature
and ambit is required to be constitutionally explored, understood and appreciated. This
would, in turn, prompt the citizens to go to the polling booth and not just to vote but exercise
their right to elect their representatives in the light of their judgment. The right to vote could
be usefully invoked and applied in making various political arrangements truly functional and
thereby provide impetus to the democratic system of governance. The masses are required to
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be encouraged to participate and exercise their right to vote in the first instance4. This indeed
was the message of President of India to the nation on the eve of 65th Republic Day when he
said that ―each one of us is a voter and has a responsibility. We cannot let India down. It is
time for introspection and action... 2014 should also become the year of healing after
fractured and contentious politics of the past few years. Fractured government can prove
catastrophic,‖ cautioned the President, for such a regime is ―held hostage to whimsical
opportunists. With the increasing participation of citizens, the possibility of a ‗fractured‘
mandate is considerably reduced, because, notwithstanding illiteracy coupled with poverty of
the large section of our population, their collective vision of a relative good government they
would like to have cannot be faulted.
Today, people believe that their government is not keeping pace with their expectations. In
the last two years, India has seen two groundswells of popular protest in which crowds
largely composed of middle-class urbanites have taken to the streets to demand a more
accountable and responsive government. The moral outrage is entirely justified, and the
factors linked to India‘s governance woes are well known − a rise in corruption, cronyism,
and criminalising among the ranks of elected officials, and a crushing government
bureaucracy. India‘s governance challenges come against these backgrounds of dramatic
economic and political transformation.
How do we explore the constitutional dimensions of the nature and ambit of the citizen‘s
right to vote? This is done primarily and essentially through the instrumentality of the
Supreme Court, which is constitutionally empowered to state authoritatively, what the
Constitution is or what does it say on counts of nature and ambit of this right. In this respect,
one may bear in mind the clear and categorical mandate contained in article 141 of the
Constitution.
The law declared by the Supreme Court shall be binding on all courts within the territory of
India. How does the Supreme Court declare the law? The Supreme Court is not the
legislator. The law making function strictly and properly belongs to the legislature. Making
and declaring that law become manifest through the statute enacted by the legislature.
However, this law, the statutory law, in turn, under the constitutional system of government
must be in accordance with the provisions and principles laid down in the Constitution5. The
authoritative statement in a conflict situation whether or not the enacted law is in consonance
with the constitutional mandate is eventually made by the apex court. This is how the
Supreme Court comes into play.
The Supreme Court, thus, declares ‗the law‘ only contextually, and that law is to be
deciphered in the form of, what is termed as, ratio decidendi the underlying principle-basis of
4
Ravi Shankar, the Founder of the Art of Living, to his followers is: “Spread awareness about the right to vote”
5
Article 325
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the decision — as distinguished from ―obiter dictum‖ that is an observation made by the
court just by the way, which is not necessary for deciding the case in hand; it is something
hypothetical in nature.
In this context, there is yet another cognate question that needs answering: Whether the law
declared by the Supreme Court also binds the other organs of the state, namely, the
legislature and the executive. Such a question is relevant to ask, because article 141 makes a
reference only to the courts in India that are bound by the Supreme Court-declared-law.
The answer is in the affirmative. The law declared by the Supreme Court is equally binding
on the legislature and the executive, because in case of conflict situation presented before the
court, the court shall resolve the issue as per the declaration of the Supreme Court, and not
according to the understanding and interpretation of the law by them – by the Parliament or
the executive.
Thus, the whole process of declaring the law, by reason of being highly contextual, and its
deduction being inferential, is quite complex. But, nevertheless, notwithstanding this
complexity, such law continues to be of immense functional importance. It brings out the
newer nuances in the course of resolution of concrete conflict situations and thereby
reflecting upon its nature and widening ambit. This necessitates the continuing critical or
juridical examination of the emerging body of judicial legislation!
Bearing this background in mind, the issue of constitutional exploration of the nature and
ambit of the right to vote by the Supreme Court may be explored.
Over a period of time there had been new awakening of prisoner's rights throughout the
world. More and more rights were recognised as part of the world human rights movement.
An examination of the historical evolution of the rights of prisoners will help to get the
proper meaning and content of those rights in the present day context.
United States of America (USA)
Till very recently in some states of USA a person convicted of a crime was considered to be
legally dead. The conditions of incarceration and every aspect of institutional life were left to
the unregulated discretion of the prison administrators. But only a few states invoke such a
harsh form of humiliating treatment.
1.2 IMPORTANCE OF RIGHT TO VOTE
We have been continuously seeing the degradation of politics in India, since our
independence in 1947. Most of us have also been complaining about the behavior of the
politicians. We all are also worried about the problems like Corruption, Unemployment,
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Illiteracy, Increasing crime rate, Terrorism, Poverty and so on. The list just keeps growing.
Many of us really want to do something to change this situation, but, can‘t actually do
anything, due to many different reasons.
We have heard this many times, that India is the biggest democracy in the world. But, is India
also the strongest Democracy? My answer to this question is an absolute-‗NO‘. What do we
mean by Democracy? Abraham Lincoln had defined Democracy as the government-‗Of the
People, By the People, For the People.‘ Is it true for India? Is the Government here really
working or even worried about the People? Millions of citizens are struggling everyday just
to get food for survival. Thousands of youth are struggling just to get a job. Many of us are
being killed every day in terrorist and similar attacks. And all this has been going on since
long. What have been the Governments doing? We just get the news of an ever increasing
amount of corruption and decreasing standard of the politics in our Country.
In a Democracy, elections are the biggest opportunity to bring about the changes. And VOTE
is the biggest weapon for this change. We are lucky to have a democracy in our country, in
which every adult has a right to cast vote. We are the biggest democracy in the world, but, at
the same time, we are continuously becoming a weaker and weaker democracy. We have
some of our MPs and MLAs in our parliament who has serious criminal charges against
them. Many of these have also been convicted by the courts. But, there number is
continuously growing as political parties are giving protection to them, just for personal
gains. But this severely affects the future of our nation and its citizens.
If we are worried about our future and the future of our country, then all of us must cast our
votes. ‗Voting‘ is not only our ‗Right‘. In fact, it is our responsibility as a citizen and we all
must fulfil this responsibility with seriousness. We all MUST cast our vote and must also
inspire others to cast their votes because this is the strongest weapon in our hands with the
help of which we can solve our problems and can bring a great revolution in the country
without a drop of blood.
I do not want to name any one political party. It is up to the Individual to decide whom he/she
wants to vote. But, before casting our vote, we must think about the past performance of the
particular party & its agenda for the future. We all must vote without getting affected by the
factors like caste or religion. Instead our focus should be on factors like the party‘s stand on
National Security, Terrorism, Poverty, Unemployment, Poverty, Literacy and other important
issues.
As a voter, Youth can play a major role in the elections because a large amount of our voters
belong to the young generation. We must remember that we are not voting for someone else.
In fact, our vote will help us build a better future for ourselves. So, we must Vote and must
also inspire others to cast their vote.
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As per the rules of the Election commission of India, Every voter must have his name
registered in the Electoral Rolls (Voters‘ List). If you don‘t have your name registered in the
list, you can‘t vote. Also, voters must also have an identity card which is known as Voter‘s
ID card. If you don‘t have any of these, then you won‘t be allowed to vote. Visit the local
Election office to know about the procedure and forms to register your name in the Voters
List and to have an ID. If you already have all of these, then don‘t forget to cast your vote and
also to tell others to do so. Because only then can we hope to see some improvements in the
situation of our Nation. Also, those who don‘t fulfil their responsibility towards the country,
have no right to ask for their ‗rights‘. I would like to quote John F.Kennedy here-‗Ask not
what the country has done for you. Ask what you have done for the country.‘ So, if we can‘t
do anything else for our country, let‘s at least cast our vote with responsibility and let‘s unite
to bring positive changes in our life and to make our own future better6.
In a country so populous, a voter might feel that a single vote does not make any difference.
However, the balance tilts when this becomes a national attitude and lakhs—perhaps crores—
of votes are not cast. By casting their vote, citizens may not necessarily be able to get the best
candidate elected—politics being what it is—but by avoiding casting their vote they improve
the chances of the unsuitable ones winning the polls. At the end, it is only the voter who has
to suffer through poor governance
Get heard: Voting offers every citizen a medium of expression. In a country as vast and
diverse as ours, different regions have different concerns and priorities. The process of voting
allows every citizen to have a say in what should constitute the matters of importance by
voting for the candidate he or she deems fit for the purpose. While it is true that the outcome
of elections is seldom predictable, by not casting one's vote, that citizen is giving up on the
chance of getting heard.
Voting as a responsibility: Voting is as much a responsibility as it is a right. The whole

edifice of Indian democracy is built on the foundation of voting. If citizens are not careful
about casting their vote—or worse, skip their vote altogether—it will jeopardize the existence
of our democratic Republic.
Voting as an honour: Finally, voting is an honour conferred on the citizens by the founding
fathers. By exercising their right to vote, citizens demonstrate their respect for the history of
the country. It can't be denied that the recent democratic experience in India has not been
encouraging. For the past several years, India has been struggling with rampant corruption,
unsure economy, and unclear foreign policy. Election after election has seen ineffective
governments come to power that have done more harm than good. However, not casting one's
6
https://www.quora.com/Why-is-right-to-vote-important
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vote will only worsen the condition. It is our duty as responsible citizens of India to make
informed decisions and choose the best candidate from those presented. Moreover, with
reforms like Right to reject gaining wider support, it wouldn't be long before the system of
elections is improved.
Right to vote is important because:
1. A directly elected government is one that has the approval of the people. This means that
the government consists of the people's representatives.
2. When the government is directly elected by the people, there will be more co-operation
and obedience of laws among the masses, because after all why wouldn't you obey the people
whom you voted into power?
3. Less chances of revolutions among the people because the people themselves have elected
their government. They've got to like it.
4. The government too cannot act arbitrary and despotic because if they do, they will
probably not get elected for a second term, and who wants that? Right to vote ensures a
DEMOCRATIC AND RESPONSIBLE government.
5. Right to vote encourages civic consciousness because it encourages political participation,

and the citizens will thus keep tabs and checks on the political leaders and the government.
This constant scrutiny helps the people make informed decisions about whom to vote for in
the next term. Plus, the government can't really act arbitrarily when the whole country is
observing and criticising its every move7.
6. Lastly, right to vote is given to all adults, irrespective of gender, class, occupation etc. This
is symbolic of equality and harmony. It is a basic political right in which all citizens
regardless of their differences get a chance to have a say in who represents them.
It is the hallmark of democracy, equality and representation.
One of the most critical ways that individuals can influence governmental decision-making is
through voting. Voting is a formal expression of preference for a candidate for office or for a
proposed resolution of an issue. Voting generally takes place in the context of a large-scale
national or regional election; however, local and small-scale community elections can be just
as critical to individual participation in government.
7
https://www.quora.com/Why-is-right-to-vote-important
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The Universal Declaration of Human Rights, adopted unanimously by the United Nations
General Assembly in 1948, recognizes the integral role that transparent and open elections
play in ensuring the fundamental right to participatory government. The Universal
Declaration of Human Rights in Article 21 states8:
Everyone has the right to take part in the government of his/her country, directly or through
freely chosen representatives.
Everyone has the right of equal access to public service in his country.
The will of the people shall be the basis of the authority of government; this shall be
expressed in periodic and genuine elections which shall be by universal and equal suffrage
and shall be held by secret ballot or by equivalent free voting procedures.
The role that periodic, free elections play in ensuring respect for political rights also is
enshrined in the International Covenant on Civil and Political Rights, the European
Convention for the Protection of Human Rights, the Charter of the Organization of American
States, the African (Banjul) Charter on Human and Peoples‘ Rights and many other
international human rights documents9.
While the right to vote is widely recognized as a fundamental human right, this right is not
fully enforced for millions of individuals around the world. Consistently disenfranchised
groups include non-citizens, young people, and minorities, those who commit crimes, the
homeless, disabled persons, and many others who lack access to the vote for a variety of
reasons including poverty, illiteracy, intimidation, or unfair election processes. An important
force in combating disenfranchisement is the growth of organizations engaged in election
monitoring. Around the world, governments struggle to meet the challenge of the Universal
Declaration related to free and fair elections. Election monitoring groups, ranging from local
or party monitors to United Nations teams, assist governments and local groups to hold free
and fair elections by observing the process from the beginning (voter education, candidate
campaigns, planning for the ballot) to the end vote count. By declaring an election ‗free and
fair‘ monitors can legitimize the outcome of that election10. Conversely, by not doing so,
legitimacy is withheld. The question of whether or not to grant legitimacy to election results
is complicated by political considerations, as the results of declaring elections ‗not free nor
fair‘ can be serious. Riots and even civil war can break out.
8
http://hrlibrary.umn.edu/edumat/studyguides/votingrights.html
9
10
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1.3 PRISONER’S RIGHT TO VOTE IN INDIA AND ABROAD
Democracy means for the people, of the people and by the people. The inherent consideration
of a democratic setup is social equality, where people choose their representatives to form
government, not to rule them but to administer them. Also, Article 14 of the Indian
Constitution upholds this principle of equality. But a prisoner has no right to cast his vote. He
has no right to support who he wants his political leader to be. Is this not differentiating? The
question to be asked here is- why are the prisoners denied their right to vote? Is this the
outcome of society‘s malafide intention towards them?
The Constitution under Article 326 guarantees ‗universal adult franchise‘ to every citizen of
India, being eighteen years or above of age but with some restrictions. The Article reads as:
“The elections of the house of people and of the legislative assembly of every state shall be
on the basis of Adult Franchise; that is to say, every person who is a citizen of India and who
is not less than eighteen years of 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.”
Also, section 62 (5) Representation of People Act, 1951 provides for certain restrictions on
voting rights of prisoners- ―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.‖
It is pertinent that the validity of such restrictions be examined. The constitutionality of

Section 62(5) of the Representation of People Act has already been challenged before the
Supreme Court in Anukul Chandra Pradhan v. Union of India as being violative of the
right to equality and the right to life under Articles 14 and 21 of the Constitution. Through a
unanimous opinion authored by the late Chief Justice J.S. Verma, the said challenge failed.
The Supreme Court dismissed the petition on two grounds: firstly that Article 14 does not
affect validity of Section 62(5) of the Representation of People Act, and secondly the Court
observed:
“The right to vote is subject to the limitations imposed by the statute which can be exercised
only in the manner provided by the statute prescribing the nature of the rights to elect cannot
be made with reference to fundamental rights in the Constitution. The very basis of challenge
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to the validity of Section 65(5) of the Act is therefore, not available and this petition must
fail.”11
In India also the status of a prisoner and the rights granted to him are almost the same as that
of England and USA. His movements are restricted and some disabilities are imposed upon
the prisoner. Various restrictions are imposed upon the exercise of the fundamental rights
also. Conviction Of certain offences also results in the loss of civil rights12. But unlike in
England a convict is unable to sue for torts in India. No permanent voting disqualification
exists in India. It is only for the period of imprisonment. History of prisoners and prison
administration goes back even prior to the enactment of the Prison Act and Prison Manuals.
Concern for the betterment of conditions of prisoners has been attempted in India from earlier
times in various legislations. Legislations that deal with the prisoners in India are Prisons Act
1894, Prisoners‗Act 1900, Transfer of Prisons Act 1950 and Prisoners (Attendance in Courts)
Act 1955. Apart from the specific legislations, Articles 14, 19 and 21 of the Constitution of
India are also "very ruffle relevant suit regard to prisoner‘s rights. In Kerala, the
Travancore—Cochin Prisons Act 1950 extends to the area of the whole of the erstwhile State
of Travancore—Cochin. Central Act 9 of 1894 applies to the Malabar District of the
erstwhile State of Madras.
The right to vote for people deprived of their liberty varies widely from country to country,
and even within some countries (eg. the USA). In some countries voting rights for prisoners
are subject to restrictions and/or conditions, whereas in other countries people convicted of an
offence are automatically disenfranchised for the period of their prison term, or even after
they have served their time of parole. The right to vote – without discrimination – is set out in
the Universal Declaration of Human Rights (UDHR), which provides that ‗everyone has the
right to take part in the government of his country, directly or through freely chosen
representatives‘(article 21)13.The UDHR, though not a treaty in itself, is generally considered
customary international law and therefore has binding status. The International Covenant on
civil and Political Rights (ICCPR), which is legally binding on the 168 State Parties that have
ratified it, indicate that the right to vote is to be exercised through voting in ‗genuine periodic
elections which shall be by universal and equal suffrage.14
The current law in the UK is that convicted prisoners (with few exceptions) are denied the
right to vote in national or local elections while they are incarcerated. Remand prisoners, and
sentenced prisoners imprisoned for contempt of court and for non-payment of fines, are
allowed to vote. The provisions disenfranchising offenders are in s3 of the Representation of
the People Act 1969, as amended in 1983 and 2000, which states that:
11
Sinha. gp.giE., p.lll6.
12
Section lO(d) of the Citizenship Act 1955
13
http://www.un.org/en/universal-declaration-human-rights/ UN General Assembly, Universal Declaration of
Human Rights, 10 December 1948
14
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx UN General Assembly, International
Covenant on Civil and Political Rights
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A convicted prisoner during the time that he is detained in a penal institution in pursuance of
his sentence . . . is legally incapable of voting in any parliamentary or local election. This
denial of voting rights has led to considerable criticism. At a time when the Government is
under attack for the erosion of civil liberties and is encroaching on rights across a wide range
of issues, including extending pre-charge detention, restoring the right to vote to convicted
prisoners would be a positive step in affirming a commitment to fundamental rights.
Although critics have focused on rights violations in relation to control orders, extended
detention and the treatment of suspects, for example, in the Terrorism Act 2006 and the
Counter-Terrorism Bill 2007–08, the rights lost during detention have received less attention
but may still be significant.
In this article, I consider the Government‘s justification for the ban, whether the arguments in
favour of disenfranchisement are convincing, and whether the problems raised by the ban will
be resolved by the Government‘s limited proposals for change. It will be argued that prisoner
enfranchisement would benefit both prisoners themselves and the wider society.
It is indeed beyond doubt that Article 14 permits the state to make classifications and accord
differential treatment according to the same. However, the restriction on the state is that these
classifications must be ‗reasonable‘ and must have a rational nexus to the objective being
sought to be achieved. Also, when Article 326 itself provides for certain disqualifications on
the grounds of non- residence, unsoundness of mind, crime or corrupt or illegal practice, any
other restriction will be without cause.
The Supreme Court opined that it is reasonable to deny voting rights to convicted prisoners,
under trials and those in police custody because it was being done to curb the criminalization
of politics. It is difficult to understand how the denial of voting rights is relevant in
decriminalization of politics. Such issue is vital for the nation and has to be looked into by
ensuring that those with a criminal record do not contest elections but it has very little to do
with who vote. If for once we seem to be convinced with the reasons cited by the Apex Court,
it is still baffling that the distinction between convicted prisoners and the under custody-
under trials was not considered by the court15. The Indian criminal justice system commits to
the policy of ―innocent until proven guilty‖ but as far as voting rights is concerned, there is a
general presumption made that the under custody- under trials are to be guilty. What would
fair would be to acknowledge the fact that the under custody- under trials are yet to be found
guilty and are still under investigation or interrogation. Those under police custody might be
poor and marginalized sections of society, who were not able to manage bail due to lack of
required amount or surety. Bringing such under trials within the shade of ―criminalization of
politics‖ is a slap on the fundamental principle which forms the very foundation of the
Constitution.
15
ibid
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The Supreme Court seem to account for practical considerations that additional resources
would be required in terms of infrastructure, security and deployment of extra police forces,
if prisoners and those under custody are given the right to vote. It is disappointing that the
Honb‘le Court has laid its argument on the basis of ―resource crunch‖ while determining a
national issue. Constitutional protection of civil liberties cannot be subordinated to
practicality.
A similar view can be reiterated in the case of Mahendra Kumar Shastri v. Union of India
and Anr, where the Supreme Court observed that the restriction imposed by the
Representation of People Act was not unconstitutional and was in public interest. Further, in
a decision of the Patna High Court, the Court went to the extent of saying that right to vote is
a statutory right. The law gives it, and the law can take it away.
THE PARADOX
In India, prisoner‘s voting rights are opposed due to an emotional reflex that the person
alleged for committing an offence has violated some or the other right of another bonafide
citizen of India or has committed a wrongful act against the State and so his rights should be
seized. A person who does not abide by a law and the values of the society deserves this
punishment of being barred from having any say in the construction of democracy institution.
It is a common fact that a person, who is not convicted and only under trial, cannot cast his
vote from jail or from his detention place but he can very well contest election16. Is it not a
mockery of law that a person, who cannot cast his vote, can become an M.P., an M.L.A. or a
Minister? There are several instances in our country, where people have contested elections,
while in jail, and some of them have also won and become Hon‘ble M.L.A.s or M.P.s. It has
raised serious questions on the viability of the existing electoral system. It can also be said
that those who are in lawful or unlawful custody of the police cannot also vote. Police
custody for any accused provides immunity to the police for any action but robs the
aggrieved from his valuable right to vote.
The denial of voting rights to prisoners is meant to prevent breach of law but persons in jail
after conviction or during investigation and trial subsequent to the commission of crimes
should be put on different footing, such distinction not being sufficient by itself.
A person, who is under trial, may be found innocent, what shall happen then? Is there any
provision for compensation to be paid from stopping him to tender his vote? Whether the
under trial, who is deprived from his right to vote be compensated, if it is found that he was
innocent and remained in jail without any reasonable and probable cause?
16
Ibid.
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The proceedings of the Preventive Detention laws are taken against those offenders or
criminals, who are beyond the reach of ordinary criminal laws or against Mafias or
Underworld Dons, who have made their escape good from the Courts on legal technicalities
but are form of terror in the Society. The Supreme Court in the case of Sangram Singh v.
Union of India,17 held that right to vote was a statutory right and it is not a common law
right. The right to vote or to stand as a candidate for election is not a right but is a creature of
statute or special law and must be subject to the limitation imposed by it. The Court kept in
view the Representation of the People Act and various other election laws prevalent in this
country.
But Section 62 (5) of Representation of People Act, 1951 restricts voting rights of not only
convicted but also under trials, widening the term ‗crime‘. Here before proving guilt,
punishment of being lesser citizen is awarded, damaging their dignity and sense of self-
worth, undermining efforts to help them control their behavior. This causes a serious concern
for the legislature to reconsider the law, re- frame it and enforce it accordingly.
Giving prisoners the right to vote would aid their rehabilitation and orient them positively
toward the society which they will re-enter on their release, which is essential if they are to
avoid reoffending. Voting encourages prisoners to take an interest in current affairs. It is
understandable that this process is assisted by a policy of encouraging offenders to observe
their civil and political obligations.
Voting, like other rights, is not a privilege which government grants to citizens. As spoken of
already, right to vote is agreed to be the base of a democratic system and thus to maintain its
integrity, it must be placed beyond the reach of politicians or anybody. If it can be modified
easily, it loses its substantive value. Adult franchise is the surest way of achieving the goals
of justice, liberty, equality, brotherhood and dignity enshrined in the Preamble of the
Constitution. By allowing inmates to exercise their right to vote, they are allowed to
influence law and policy making in a constructive manner. An individual votes as a part of
the society, as a citizen, to cast his wish, to show that he has a separate identity and if he is
not allowed to vote it is like he has no stake in the society. Denial of voting rights is negation
of his citizenship. A dead person cannot vote, similarly, disenfranchising a prisoner leads to
his ‗civil death‘. The concept of restriction on voting right evolved as it could have violated
the fundamental rights of others but there is no reasonable explanation one can give for such
restriction being imposed on the under trials. Even those who are convicted are first time
offenders involved in minor violations of law. Very few are hardened criminals. In a
conservative society like ours, a tag of being in prison is itself a big stigma. It should not be
further extended to the alienation from society, in this respect. The penal laws have already
specified punishments for all types of offences which should not be increased by adding this
restriction to it.
17
Article 325
P a g e | 14
SCOPE
Some will argue that it is enough to allow prisoners to regain their right to vote after release.
But we cannot expect prisoners to be deprived of all rights and then emerge from prison
ready to use them well. The new consensus around post-release enfranchisement demands a
smarter way to think about prisoners‘ political rights behind bars. A prison constituency with
rights to vote and related rights of free speech can engage in civic activism that will continue
after release.
The concept of universal suffrage is defined as every adult citizen capable of voting should
have the right to vote and the opportunities to vote. The United Kingdom moved towards this
concept by passing legislation through parliament which enfranchised citizens, the first piece
of legislation was the Reform Act 1832 which gave only a limited number of male adults the
right to vote and disenfranchised a large proportion of the public including the working class.
Article 326 of the Indian Constitution mandates adult suffrage, which means that every
person who is a citizen of India and who is not less than 18 years of age can vote. However,
India is one of the few countries in the world which does not allow prisoners or under-trials
to vote. Section 62(5) of the Representation of the People Act, 1951 (ROPA) prohibits all
those who are confined in a prison or are in lawful custody of the police from voting.
OBJECTIVE
The case studies will attempt to address a variety of factors that could not be sufficiently
covered through a statistical analysis. Each will begin with an in -depth account of the current
prisoner enfranchisement policy and how it developed. The development story is quite
lengthy for some cases, particularly those whose policies have been challenged by domestic
or international courts. The majority of prisoner disenfranchisement comparison studies
available in the literature are looking at large global patterns in policies, and while these help
us understand the policy landscape, they miss the historical contexts and processes that result
in those policies. Tracking prisoner disenfranchisement policies over time to see how, when,
and under what circumstances they developed will lead to a more robust understanding of this
phenomenon and the various factors involved.
Each development story is unique, and indicates different aspects of the political structure or
culture of the respective country. For this reason the studies focus primarily on the most
Relevant factors for that particular case country, rather than devoting the same degree of
attention to all factors for the sake of parallelism.
LIMITATION
P a g e | 15
The preceding chapter has demonstrated the large variety in prisoner disenfranchisement
policy internationally, and particularly how it eschews typical patterns of development. Since
macro studies have had limited success in finding statistically significant patterns this study
will instead conduct an in-depth analysis and comparison of prisoner disenfranchisement
policies. This study will pursue a most-similar comparison in an attempt to limit unnecessary
variation. The selected case study countries are: India i.e odisha and other countries. Despite
sharing many similar characteristics, these five countries represent the broad range of
prisoner disenfranchisement laws throughout the world. Sweden is one of the most lenient
countries, the United States one of the strictest, and the other three cases are located and
different key points along the spectrum.
HYPOTHESIS
 Whether Prisoners deserve the right to vote in a democratic country.

 Whether Prisoner‘s right to vote is constitutionally valid in a democratic country.
RESEARCH METHODOLOGY
The methodology adopted in the present study is doctrinal and empirical. The study has been
carried on a legal proposition or proposition by way of analyzing the existing statutory
provision and the cases by applying the reasoning power. Different aspects has been studied
keeping in mind the existing laws relating to prisoner‘s right to vote, penal provision,
constitutional provision, cases judgments of Indian courts, different judgments of courts and
different articles relating to prisoner‘s right to vote .
The source of material for study is collected from the primary and secondary sources. Books
on law have been offered to get a legal as well as social idea of the study which is for the
fulfilment of the academic criteria only.
Original judgment of Supreme Court and high court of various countries published in
journals has been referred. The use of the most modern media, i.e. internet is also been
explored several times in order to get more information about the topic and to prepare this
study.
P a g e | 16
CHAPTER-II
RIGHT TO VOTE IN DEMOCRACY
2.1 HUMAN RIGHT TO VOTE UNDER INDIAN LAW AND ABROAD
The people of India have declared their sovereignty and have proclaimed India as a
―democratic state‖ in the preamble to the Constitution of India. Supreme Court of India has
laid down that ―democracy‟ is a basic feature of the Constitution and therefore beyond the
amending powers of the Parliament18. Fundamental rights and the Directive Principles of
State Policy under the Constitution of India are considered to be the foundation stone of
human rights jurisprudence in India. The principle of equality is our preamble promise and is
also enshrined in the Fundamental Rights. Political rights to vote and contest at elections in
terms similar to international human rights instruments are not in corporate in the
Fundamental rights Part of the Constitution, although Right to hold public office to all
citizens is guaranteed under Article 16 of Fundamental Rights Part. But, in substance,
guarantee of right to vote is found in Part XV of the Constitution titled ―Elections‖. The
Committee on Fundamental Rights of the Constituent Assembly recommended that the
independence of the elections should be regarded as a fundamental right and necessary
provisions should be made in this regard. But the Assembly considered that even though it is
important its place should be somewhere else and ultimately the Drafting Committee put it in
a separate chapter. Constitution and the Representation of People Acts, 1950-1951 provide
for the entire electoral law of India.
Universality and Equality: Constitution of India stipulates that there shall be only one
general electoral roll for every territorial constituency. No person shall be ineligible for
inclusion in the electoral roll on grounds of religion, race, caste or sex19. Every citizen who is
not less than eighteen years of age20 shall be entitled to be registered as a voter unless
disqualified under the Constitution or any law made by the appropriate legislature on the
ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice21. This
provision has been hailed as the fountain spring of India's democracy. At one stroke all
undemocratic qualifications have been removed. The Supreme Court unfortunately refuses to
accept the right to vote as a civil right under the Constitution and has dumped it as a creature
of statute subject to limitations imposed by it.
18
Keshavanandha Bharathi v State of Kerala, AIR 1973 SC 1461; S R Bommai v Union of
India,AIR 1994 SC 1918
19
Article 325
20
Constitution (61st Amendment) Act 1989 brought down the age from 21 years
21
Article 326
P a g e | 17
Disqualifications to vote: The equal right to vote is directly governed by Ss. 16 & 19 of
1950 Act & Ss. 11A & 62 of the 1951 Act. Section 16 disqualifies a person from registration
in an electoral roll who is not a citizen of India or is of unsound mind or is disqualified for
election offences/corrupt practices. Also, after registration if any person becomes disqualified
his/her name shall be struck off from the rolls. Section 19 lays down minimum 18 years of
age & ordinary residence in the constituency as conditions for registration. Laying down the
disqualifications for voting, S.11A disqualifies for six years from the date of conviction for
conviction under S.171 D or S171F, Indian Penal Code19 or under S.125 or Sec. 135 or
S.136 (2) (a) of 1951 Act from the date of conviction and up to six years for disqualification
for election offences under S.8A, 1951 Act. Section 62 1951 Act deals with right to vote.
Every person who is entered in the roll of a constituency is entitled to vote in that
constituency. A person suffering from disqualification cannot vote. Every person entitled to
vote, can vote only in one constituency and only once at one election. Section 62 (5)
disallows a person to vote at an election if he/she is confined in a prison; the confinement
may be under a sentence or in the lawful custody of the police. This disentitlement will not
apply to those confined under any preventive detention law.
The Constitution identifies disqualification only on grounds of non-residence, unsoundness

of mind, crime or corrupt or illegal practice. Section 62(5) disentitles all persons in prison
including the under trials & those in police custody. This is against Article 326, the letter &
spirit. Confinement in prison does not involve loss of citizenship. Under trials have a right to
be presumed innocent until the guilt is proved22. Arbitrary arrest & confinement have become
very usual and they can negate the right to vote. Delay in trials have become routine although
right to speedy trial is recognized Under trials who cannot furnish bail are unreasonably
discriminated and their right to vote is deprived A person under trial for murder who is on
bail can vote but a person arrested for loitering in public place at odd hours cannot if he
cannot afford bail. Parliament has abdicated its responsibility of formulating the policy on
disqualification on the ground of conviction. S.62(5) has been upheld and the plea that all
under-trial prisoners should be extended the right to vote dismissed by the Supreme Court23
This judgment will have to be reconsidered & the Parliament shall lay down by law, in detail,
the disqualification due to conviction. Number of years of disqualification shall suit the
nature & gravity of the offence.
It is quite strange to allow people with criminal charges to contest at election but disallow
such persons from voting if they are confined in prison. It may be recalled that in the trust
vote on 22 July 2008, convicted members voted in the Parliament on the ground that their
appeals were pending in the higher courts. They were released from jail for the purpose of
voting. The decision of the Supreme Court in Sanjay Dutt v. State of Maharashtra24 is a
glimmer of hope. Accused before the Special Judge charged under the Arms Act and
Terrorist and Disruptive Activities (prevention) Act, Sanjay Dutt was convicted and
22
Article 11(1), UDHR; Article 14(2), ICCPR
23
. Anukul Chandra Pradhan v UOI, AIR 1997 SC 2814
24
2009 (4) UJ SC 2036; MANU/SC/0492/2009
P a g e | 18
sentenced to six years rigorous imprisonment. His petition under Section 389 of Cr PC for
suspension of conviction and sentence pending final hearing of the appeal to enable him to
contest election was dismissed. The court was of the opinion that in the absence of
exceptional circumstances the power to stay cannot be exercised.
Genuine Elections & Secret Ballot: Elections shall be genuine & not farce. Constitution
of India ensures free, fair & impartial elections by establishment of Election Commission as a
constitutional body to control, direct & superintend the conduct of all elections25. The
Commission is autonomous and insulated from the executive. Supreme Court has
strengthened the role of Election Commission by recognizing its power to scrutinize the
election expenses in cured by political parties & the sources of such expenses and its power
to demand information on assets, criminal antecedents & educational qualification of
candidates contesting elections. Nexus between Election Commissioners and
politicians/political parties can endanger the Election Commission's role. Media exposes on
Mr. Navin Chawla's affinity to Congress and subsequent developments indicate the need to
tighten the rules insulating the Commission from the Executive. Chief Election
Commissioner enjoys a security of tenure similar to that of a Supreme Court Judge but the
Constitution fails to lay down the qualifications for the post. The Constitution should lay
down qualifications for persons to be appointed in the Commission. Further the appointments
should be in consultation with the opposition party and other major political parties26. The
Supreme Court has asserted its power of review over decisions of the commission to
postpone elections etc. on grounds of Law & Order situations27. This review can prevent &
also protect against politically coloured/ favoured decisions by the Commission. The
principle of free and fair elections has been engrained in Article 25, ICCPR in terms of secret
ballot guaranteeing free expression of will of the people. Secret ballot is essential to ensure
free participation & expression by the people & to rule out victimization on the basis of their
votes. Although Constitution has prescribed secret ballot in the election of President & Vice-
President of India28. It remains silent as to elections to the Lok Sabha, Rajya Sabha & State
Legislatures. This void is filled up by Sections 55 & 128 of the 1951 RPA. S.55 says that at
every election, poll shall be taken by ballot, which is not open, except at the election to fill
seats in the Rajya Sabha. S.128 recognizes the duty to maintain secretary of voting and
punishes for breaches.
Right to information of voters: Voters require proper and adequate information about the
contestants in the election if they have to meaningfully cast their votes. Criminalisation of
politics has become a grave problem afflicting our democracy. Law Commission‘s suggestion
that the persons charged with serious offences is disqualified from contesting the election and
the Election Commission‘s expression of concern over criminalisation of politics have not
25
Article 324
26
Former CEC Gopalaswami wrote to the President such suggestions. See Indian Express p.11 dated 5th Feb
2009.
27
Digvijay Mote v UOI, (1993) 4 SCC 175
28
Articles 55 & 66
P a g e | 19
been acted upon by the government and Parliament29. Judiciary has ruled that the Election
Commission must make it mandatory for the candidates contesting elections to give details of
–
(a) Conviction, acquittal, discharge of any offence, punishment

(b) Pending accusations / charges
(c) Assets
(d) liabilities, government dues
(e) Educational qualification.
Holding right to information an essential component of free speech30, the Supreme Court
recognized the right of the voters to know the candidates sufficiently enough to make the
right choice. Now the Representation of People Act1951 has recognized a duty on the
candidates contesting elections to provide information as to criminal convictions and
accusations. The applicability of Right to Information Act 2005 against individual MPs or
MLAs has not been accepted by the Central Information Commission.
Universal right to vote cannot by itself guarantee universal participation through voting.
Fundamental duties of citizens in the Constitution are just a tokenism and even that does not
include duty to vote. Disillusioned youngsters, beauty conscious women who are worried
about the indelible ink and working lot who look upon Election Day as a day of rest have
dishonoured the divinity in the human right to vote. Indian democracy believes that the ―little
Indian‟ is all capable. True capability requires education and an awakening, as Mahatma
Gandhi stressed, about the vastness and greatness of this country. Citizenship is the greatest
of all offices in the polity of any country. Right to vote can establish a popular government
which in turn can ensure welfares and good governance.
2.2 RIGHT TO VOTE V/S RIGHT NOT TO VOTE
Since Mumbai terror attack common man" blazed criticism against politicians. Public anger
against politicians was reflected through various channels, newspapers, blogs etc. The
reaction to 26/11 was bunch of mixed reactions… anger towards system, politicians; sorrow
for the fallen heroes who lost their lives because State could not provide them with better
weapons for self protection; sympathy towards families who lost their loved ones. On the one
hand people lighted candles to show solidarity for brave fighters who sacrificed their lives to
save Mumbai, and on the other hand politicians were being criticized for dragging India in
such a situation due to ineffectiveness. In many ways people shown that they have no faith in
politicians and strongly protested against political apathy. The shock and anger on 26/11 was
witnessed in many forwarded emails, blogs etc.
29
Law Commission 170th Report(1999)
30
Art.19(1)a recognizes freedom of speech and expression of all citizens
P a g e | 20
The debate started whether ―Right Not to Vote" exits under section 49-O of THE CONDUCT
OF ELECTIONS RULES, 1961? Many columns suggested that people can go to polling
booths, confirm their identity, get their finger marked and convey to the presiding election
officer that they would prefer not to vote31. Many supported that no such right exits because
Government has not yet given approval to such law.
If an elector, after his electoral roll number has been duly entered in the register of voters in
Form-17A and has put his signature or thumb impression thereon as required under sub-rule
(1) of rule 49L, decided not to record his vote, a remark to this effect shall be made against
the said entry in Form 17A by the presiding officer and the signature or thumb impression of
the elector shall be obtained against such remark32.
The above provision is mentioned in Chapter II of Part IV of the rules. The simple meaning
of this provision is if any voter who wishes to exercise "Right Not to Vote" cannot exercise it
just sitting at home. This provision enables voter not to cast his vote in favour of any of the
Candidate, by registration of his electoral roll number in Form-17A by the Presiding Officer.
Voter has to put his signature in front of statement marked to that effect by Presiding Officer.
The newly introduced Electronic Voting machines as well as conventional Ballot Paper do
not provide option none of the above. Therefore, Election Commission in the year 2001 and
2004 has recommended for the suitable changes in the Rule 22 and 49B of the Conduct of
Election Rules, 1961; which deals with form of ballot paper and preparation of voting
machines respectively. The same recommendation is reproduced here.
The occasion to explore the nature and ambit of the right to vote arose in precipitated form
for the first time when the Supreme Court was required to answer a conflict situation, which
revolved around two propositions:
First contextual proposition: Whether the citizens right to vote includes within its ambit his
right to know the background of the election candidates, including particularly if they bore
any blemished record, such as criminal background. The occasional opportunity to raise this
proposition arose before the apex court in the year 2002-2003 in two successive cases, Union
of India v. Association for Democratic Reforms, and People‘s Union for Civil Liberties v.
Union of India33. In order to understand the value of this proposition to be expounded by the
Supreme Court, one needs to ask at least two exploratory questions. One, why it took more
than fifty years even to ask this question, namely, whether a citizen in the exercise of his right
to vote has the right to know the background of the election candidates? How has he been
hitherto casting his vote, say, during the last fifteen Lok Sabha elections? How did he
31
http://www.legalserviceindia.com/articles/po.htm
32
Ibid.
33
AIR 2002 SC 2112, per MB Shah, Bisheshwar Prasad Singh and H.K. Sema JJ. (Hereinafter simply, Association
for Democratic Reforms-2002).
P a g e | 21
exercise his right to vote in the last more than 50 state assembly elections? It seems the
citizens have been casting their vote without really exercising their right to franchise!
Mentioned in the Fourteenth Amendment, Fifteenth, Nineteenth, Twenty-Fourth and Twenty-

sixth Amendments, the right to vote (suffrage) is freedom of an individual to actively
participate in the political decision-making process by choosing between competing people or
ideas without fear or reprisal34. The right to vote can only be restricted if the government
shows a compelling reason for doing so. The Supreme Court will strictly scrutinize the
government's justification for limiting this right and probably strike down such a law.
The right to vote has been viewed as a right, as a privilege, or as a duty. As a right, it is
conceived of as an inalienable attribute inherent in the individual. As a privilege, right to vote
is considered as being conferred on the individual by law and is subject to limitations
imposed by governing authorities. Some theories rely on the classical Greek concept of the
exercise of the right to vote as the citizen's duty to participate actively in the welfare of the
community.
Today universal or near-universal suffrage prevails in most of the world, although the extent
to which true choice may be exerted varies widely. The requirements of voting show great
uniformity in different regions and under different systems of government. The right to vote
is almost invariably limited to citizens of a minimum age between 18 and 25, depending on
the country, and to residents of the locality. Excluded are the mentally ill and convicted
felons. In some nations women's right to vote is still subject to qualifications. In other parts of
the world property ownership and racial requirements for voting may be enforced. These
qualifications for right to vote, and others based on religion, education, and taxpaying, were
universal during the middle Ages, and many persisted well into the 20th century. Most
exclusion reflected the fears of those with power that extending the vote to individuals who
had no stake in the existing order (the young, the poor, and the itinerant) would lead to
instability.
In the United States at the time the Constitution was written, it is estimated that only 6
percent of the adult male population were entitled to vote. Subsequent democratic changes in
American society eliminated religious and property qualifications. Racial barriers to voting
existed legally until the Fifteenth Amendment to the Constitution was ratified after the Civil
War. Thereafter, blacks were excluded from the right to vote in some states through such
devices as the white primary, the poll tax, literacy tests, and grandfather clauses. These were
gradually interpreted to be unconstitutional under the 15th Amendment or under the Equal
Protection of the Laws clause of the Fourteenth Amendment. Women were given the
34
In view of the increasing public concern about the murky state of affairs, the Union government on 9th July
1993 set up a committee under the chairmanship of the then home secretary N.N. Vohra (now the Governor of
the State of Jammu and Kashmir) to study, inter alia, the nexus amongst criminals, politicians and bureaucrats,
and recommend the requisite measures to decriminalize our polity
P a g e | 22
franchise in 1920 under the Nineteen Amendment, and the right to vote was extended to 18-
year-olds in 1971 under the Twenty-sixth Amendment35.
One would think that with the abolition of property requirements and poll taxes, the
enfranchisement of people of colour, women, and 18-year-olds, the battle for the right to vote
had been won. But as it has been noted so often, democracy is a constantly evolving process,
and how we define individual rights within a democracy also changes over time. There is a
big difference in how an American citizen voted in the 1820s and how that ballot is cast at the
beginning of the 21st century. Moreover, it is not a simple case of pro-democratic heroes
wanting to expand the franchise while anti-democratic demons want to narrow it.
Throughout American history people of the so-called better sort have feared mob rule; it is a
theme that runs throughout the writings of the Founding generation36. In different form today
we find a version of it among those who would "purify" the electoral process. Efforts to
making voting registration easier, for example, are often attacked as inviting corruption into
the process. The relaxation of literacy standards and the expansion of voting rights to citizens
who do not speak or read English is hailed by some as a victory of democracy and attacked
by others who fear that people with little knowledge of the issues can be manipulated by
demagogues.
Yet the curious fact remains that for all that we have expanded the franchise, the percentage
of Americans who vote in presidential and other elections is one of the lowest among
industrialized nations. In the 2000 presidential campaign, for example, less than 50 percent of
the eligible voters cast their ballots. Scholars differ on why this decline in voting has occurred
from the high point of the late 19th century, when voting rates regularly ran at 85 percent or
better of qualified voters. Some historians attribute the decline to the corresponding decline in
the importance of political parties in the daily lives of the people. Others think that the
growth of well-moneyed interest groups has led people to lose interest in elections fought
primarily through television and newspaper advertisements. When non-voters are queried as
to why they did not vote the answers range widely. There are those who did not think that
their single vote would make a difference, and those who did not believe that the issues
affected them, as well as those who just did not care — a sad commentary in light of the long
historical movement toward universal suffrage in the United States.
Technical and procedural questions remain. In the 2000 presidential election, election
officials in the state of Florida discarded up to 50,000 ballots, primarily because the ballot
cards had been improperly punched so that it was unclear for whom the voter had cast his or
her ballot. At that point, because of the archaic system known as the Electoral College, the
entire election hinged on less than a few hundred votes cast in that state. Both Democrats and
Republicans immediately went into court to challenge the procedures, and in the end the
35
Vohra Committee Report para 6.2 (1993) The updated version of the extent of criminalization of politics,
36
ames Inciardi, Criminal Justice (1987), p.592.
P a g e | 23
Supreme Court of the United States in essence awarded Florida — and the election — to
George W. Bush.
In this case — and not for the first time — the Electoral College produced a president who
had a minority of the popular vote. Americans are well aware of the Electoral College
structure. It is not one of the most effective or rational aspects of American democracy, and is
a relic of a time when the people were not trusted to elect a president directly. Electoral
College is designed in such a way that each state is allocated a number of Electors equal to
the number of its U.S. Senators (always 2) plus the number of its U.S. Representatives (which
may change each decade according to the size of each State's population as determined in the
Census)37. The political parties (or independent candidates) in each State submit to the State's
chief election official a list of individuals pledged to their candidate for president and equal in
number to the State's electoral vote. Usually, the major political parties select these
individuals either in their State party conventions or through appointment by their State party
leaders while third parties and independent candidates merely designate theirs38. Whichever
presidential ticket gets the most popular votes in a State wins all the Electors of that State.
The two exceptions to this are Maine and Nebraska where two Electors are chosen by state
wide popular vote and the remainder by the popular vote within each Congressional district.
The argument most frequently used to defend this deeply flawed system of electing the
president is that it is valuable in terms of ensuring the status of the smaller states within the
federal system.
The ballot-tallying problems associated with the 2000 election obscured some very important
issues. Both sides wanted a fair counting of the vote; they wanted each ballot that had been
legitimately cast and properly marked to count, but differed on the technical criteria by which
to determine these matters. Despite cries in the media that the state discriminated against
minorities in how it handled the matter, the fact is that a majority of the votes that were
eventually disallowed had been cast by middle-class elderly white voters, most of whom had
been confused as to how they were supposed to mark the ballots. No one, then or now, has
suggested that this was a ruse to invalidate tens of thousands of votes; no one up until the
counting actually began realized that the system was far less than perfect, and in the next
session of its legislature, Florida instituted reforms to ensure that such a debacle would not
happen again.
Such an election, with the person getting the most popular vote not winning, is rare in the
United States, and it is one sign of the faith people have in the normal workings of the U.S.
election process that they easily accepted George Bush as the winner. There were no riots in
the streets, no barricades established. The Democratic candidate, Al Gore, accepted the
Supreme Court's decision on how the ballots should be counted.
37
See James Inciardi (1987), Qp.gi£., p.586.
38
Ibid.
P a g e | 24
But many people were reminded by the closeness of the 2000 presidential election that the
individual's vote does count. A shift of fractions of a percentage point in half-a-dozen states
could easily have swung the election the other way39. Perhaps as a result, Americans in the
future will not take this important right, a right that lies at the very heart of the notion of
"consent of the governed," quite as much for granted.
39
See Gianno F.Vito and Judith Hails Kachi, "Hands on or Hands Of
P a g e | 25
CHAPTER-III
CONDITION OF RIGHT TO VOTE OF PRISONERS IN INDIA
3.1 PRISONERS’ RIGHTS IN INDIA
In India also the status of a prisoner and the rights granted to him are almost the same as that
of England and USA. His movements are restricted and some disabilities are imposed upon
the prisoner. Various restrictions are imposed upon the exercise of the fundamental rights
also. Conviction of certain offences also results in the loss of civil rights40. But unlike in
England a convict is unable to sue for torts in India41. No permanent voting disqualification
exists in India. It is only for the period of imprisonment.
History of prisoners and prison administration goes back even prior to the enactment of the
Prison Act and Prison Manuals. Concern for the betterment of conditions of prisoners has
been attempted in India from earlier times in various legislations. Legislations that deals with
the prisoners in India are Prisons Act 1894, Prisoners‗Act 1900, Transfer of Prisons Act 1950
and Prisoners (Attendance in Courts) Act 195542. Apart from the specific legislations,
Articles 14, 19 and 21 of the Constitution of India are also "very ruffle relevant suit regard to
prisoner‘s rights. In Kerala, the Travancore— Cochin Prisons Act 1950 extends to the area of
the whole of the erstwhile State of Travancore—Cochin. Central Act 9 of 1894 applies to the
Malabar District of the erstwhile State of Madras.
Prisons Act 1894 and Prisoners Act 1900 ‗were enacted at a time when prison was intended
to be a torture house with a dehumanising environment. Prison reform was not visible on the
horizon at that time. More important at that time was discipline and control, not rehabilitation
and socialisation. What demanded special attention was the subject of offences inside prisons
and their punishment? Correctional treatment, with the new orientation of making offenders
non-offenders was irrelevant. Irons on prisoners, security ix: prisons, award of punishment
etc. claimed legislative priority. Naturally, the absence of the Indian Constitution gave the
central legislature absolute power of disposal of prisoners. It can be seen that the British
government gave scant regard to the human rights principles to prisoners43. This was in tune
with their philosophy of prison administration as a tool for oppression of their opponents. But
40
Section lO(d) of the Citizenship Act 1955 prescribes that a citizen by naturalisation or registration loses
his citizenship if lua has, within five years of its acquisition, been sentenced :h1 any’ country to imprisonment
for a term not less than two years.
41
42
Ibid.
43
P a g e | 26
when the permanent law, which created ri ht g s came to govern lesser legislations the court,
true to its oath to uphold constitution, had to reinterpret the provisions of Prisons Act so as to
obliterate the absolutism of British. Indian. Prison. Administration and tax broaden meaning
in such a manner that the paramount constitutional provisions were read into the text of
Prisons Act. It was this process which produced revolutionary changes in the area of prisoner
rights through various case laws. Women and children in ‗protective custody‗, mentally ill
persons unable to find a place in mental hospitals, under trials who had spent years in prison
without trial having commenced against them -these and many more of distinctive qualities
have claimed the attention of the Indian Supreme Court44.
Ahead of the Assembly elections in Maharashtra and Haryana next month, the Election
Commission of India has written to the Chief Secretaries of the two States to make
arrangements for those under preventive detention to exercise their franchise through postal
ballot.
In a letter to the Chief Secretaries of the two States, the Election Commission on Thursday
pointed out that sub-section (5) of Section 62 of the Representation of the People Act, 1951,
confers voting rights on ―electors subjected to preventive detention.‖ And Rule 18 of the
Conduct of Elections Rules, 1961, states that such detainees are entitled to cast their vote
through postal ballot.
Under Rule 21(1) of the Conduct of Elections Rules, the appropriate government has to
intimate Returning Officers of the names of voters under preventive detention.
In the Indian Constitution the human rights principles are given a prominent place. Later
developments in prisoner‘s rights truly reflect the constitutional goals and ideals. The
Supreme Court has dealt with prisoner rights in an elaborate manner in Sunil §atra(I) v. Delhi
administration upon a writ petition under Article 32 of the Constitution. Here it was laid
down that a court sentence does not deprive the prisoner of his fundamental rights. The
Constitution Bench in Sunil Batra cases laid down important principles regarding the status
of prisoners. The constitution bench brushed aside the "hands off" prison doctrine, upheld the
fundamental rights of prisoners, though circumscribed severally by the reality of lawful
custody. The fundamental rights did not forsake prisoners, and that the penological purpose
of sentence was reformatory' even though deterrent too45. Further ii: was explained that the
courts has a continuing responsibility to ensure that the constitutional purpose of the
deprivation is not defeated by the prison administration46.
44
V.R.Krishna Iyer, A yNational Prison Policy; : Constitutional Perspective gégd PragmaEi§_ Parameters T1981),
ip.3€3i_;:i'
45
sunil Batra (I) ii. Delhi Administration, A.I.R. 1978 S.C. 1675.
46
Ibid.
P a g e | 27
At present the court need not adopt a "hands off" attitude in regard to the problem of prison
administration in India. The inadequacy of prison administration and ill-treatment of
prisoners has invited criticism not only from academics but from official bodies as well. An
overview of the existing studies and reports relating to prisoner rights shows that there is
preponderance of publications; but they relate to certain specific aspects like prison
administration, prison atrocities etc.
Committee Reports
In India the first committee on the subject of prisons reforms was appointed in 1836 with
Lord Macaulay as the member. Though this committee advocated increased rigour of
treatment of prisoners and rejected all reforming influences, nevertheless its advocacy of
proper buildings, health care and intramural employment laid the foundation of future
progress. The next committee to deal with the subject was appointed in 1864. There was ea
conference of experts in 1877 to enquire into prison administration. In 1888-89 another
committee was appointed to examine jail administration and on the basis of its report, the
Prisons Act 1894 and the Prisoners Act 1900 and other statutes dealing with prisons were
passed.
The most comprehensive study of the prison administration in all its aspects was done by the
Indian Jails Committee in 1919-20 which examined the conditions of prisons not only in
India but also in England, Scotland, U.S.A., Japan, Philippines and Hong Kong. In the
meantime, the Government of India sought assistance of the United Nations for the
deputation of an expert to study the prison administration in India.
Accordingly, Dr.W.C.Reckless visited India in 1951 and made several valuable suggestions
such as revising boards for the selection of prisoners for premature release and the
introduction of legal substitute for short sentences47. In 1956 the Government of India set up
the All India Jail Manual Committee which prepared the Model Prison Rules in 1959 mainly
for the guidance of the State Governments. But except the state of Maharashtra, no other state
has completely revised the jail manuals on the basis of the said Model Rules48.The Ismail
Committee in which submitted its report in 1977 mainly dealt with allegations of ill-
treatment and beating49. Along with that it has made some suggestions for prison reforms,
rights of the prisoners and other ancillary matters.
47
The Committee recommended that the reformation and rehabilitation of offenders should be the main
objective 1f prison administration and care of criminals should be entrusted to officers who have received
adequate training. They suggested that short term imprisonment should be replaced by probation, fine or
warning or other substitutes such as work in lieu of imprisonment.
48
See Report of the Tamil Nadu Prison Reforms Commission P/7.
49
Justice M.M.Ismail Commission Report (1977), p.193.
P a g e | 28
The Committee has recommended that scientific classification of prisoners and

diversification of institutions are essential for treatment programmes in prisons50. Dealing
with delay and indifference to prison reforms, Justice Ismail said that so long as prisoners
have not been cast out of society and they continue to be members of the society, though
segregated temporarily, but are expected tax rejoin the mainstream of the society after their
release, it is the duty of the State to spend for their rehabilitation, reformation and re-entry
into the mainstream of the society.
The Government of India, concerned at the large number of under trial prisoners in Indian
jails, has brought to the notice of the Law Commission the need for undertaking suitable
judicial reforms and changes in the law, in order to deal with the problem posed thereby. The
Commission has recommended speedy investigation of the case. It highlighted the need to
liberalise provisions for release on bond. It also suggested separate places of detention for
under trial prisoners. The Tamil Nadu Prison Reforms Commissions has suggested that all
persons deprived of their liberty shall still be entitled to be treated with humanity and with
respect for the inherent dignity and rights of human person. Accused persons shall, save in
exceptional circumstances, be segregated from convicted persons and shall be subject to
separate treatment appropriate to their status as un convicted persons. Short term prisoners
should also be given useful work, so that they may not remain idle and given wages. The
Committee made some progressive suggestions with regard to women prisoners.
The co-operation of public spirited, dedicated social workers and voluntary organisations
should be enlisted for rehabilitation of female prisoners released from prisons. Justice
A.N.Mulla Committee of Jail Reforms has suggested setting up of National Prison
Commission as a continuing body to oversee modernisation of prison in India. It has
suggested that the existing diarchy of prison administration at Union and State level should
be removed. The Committee specially recommended a total ban on the heinous practice of
clubbing together juvenile offenders with the hardened criminals in prisons. According to its
suggestion the classification of prisoners central location of the prison. Socio-legal and
emotional support to women inmates should be extended through a socio-legal counselling
cell and by means of legal aid camps held in prison.
More recently the Estimate Committee of the 9th Kerala Legislature made some valuable
suggestions with regard to the rights of prisoners in the State of Kerala51. According to the
committee taking into consideration the new reformative objective of imprisonment sufficient
opportunities must be provided for interview of the prisoners52. Prison labour can be made
more profitable and useful if provisions are made for distributing work according to the
ability and taste of the prisoner53.The Committee made an important recommendation to the
50
Ibid.
51
The Committee submitted its report on 28th January, l993. See 9th Kerala Legislature Estimate Committee
(1991-93)
52
Report 9th Kerala Legislature Estimate Committee (1991-93
53
Id.’ p.lO
P a g e | 29
government suggesting enhancement of punishment for those prisoners who violates

conditions of parole.
Prisoners are also entitled to rights to some extent as a normal human being when they are
behind the prison. These rights are provided under the Constitution of India, the Prisons Act,
1894 etc. Prisoners are persons and have some rights and do not lose their basic constitutional
rights. In the case of State of A.P. v. Challa Ramkrishna Reddy54, it was held that a prisoner
is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed.
The Supreme Court has emphasized that a prisoner, whether a convict, under-trial or detent,
does not cease to be a human being and, while lodged in jail, he enjoys all his fundamental
rights guaranteed by the Constitution of India including the right to life guaranteed by the
Constitution. Even a person is convicted and deprived of his liberty in accordance with the
procedure established by law; a prisoner still retains the residue of constitutional rights.
3.2 PRISONER’S RIGHTS UNDER THE CONSTITUTION OF INDIA
Constitution of India does not expressly provide the provisions related to the prisoners‘ rights
but in the case of T.V. Vatheeswaran v. State of Tamil Nadu55, it was held that the Articles
14, 19 and 21 are available to the prisoners as well as freemen. Prison walls do not keep out
fundamental rights.
Article 14 of the Constitution of India says that the State shall not deny to any person equality
before law or the equal protection of laws within the territory of India. Thus Article 14
contemplated that like should be treated alike, and also provided the concept of reasonable
classification. This article is very useful guide and basis for the prison authorities to
determine various categories of prisoners and their classifications with the object of
reformation.56
Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India.
Among these freedoms certain freedoms cannot enjoyed by the prisoners because of the very
nature of these freedoms. But the ―freedom of speech and expression‖ and ―freedom to
become member of an association‖
Article 21 of the Constitution of India says that No person shall be deprived of his life or
personal liberty except according to procedure established by law. This Article stipulates two
concepts i.e., right to life and principle of liberty. By Article 21 of the Indian Constitution it
is clear that it is available not only for free people but also to those people behind the prison.
54
(2000) 5 SCC 712: AIR 2000 SC 2083.
55
AIR 1983 SC 361 : (1983) 2 SCC 68
56
Chowdhury Roy Nitai, “Indian Prison Laws and Correction of Prisoners”, Deep and Deep Publications, New
Delhi, 2002, p.75.
P a g e | 30
Following are the rights of prisoners which are implicitly provided under the Article 21 of the
Constitution of India:-
 Right of inmates of protective homes57

 Right to free legal aid58,
 Right to speedy trial59,
 Right against cruel and unusual punishment60,
 Right to fair trial61,
 Right against custodial violence and death in police lock-ups or encounters,
 Right to live with human dignity,
Apart from these rights of prisoners Constitution of India also provides following rights to the
prisoners:-
 Right to meet friends and consult lawyer,

 Rights against solitary confinement, handcuffing & bar fetters and protection from
torture,
 Right to reasonable wages in prison.
No, a person confined in jail cannot vote in an election in India. As per the provisions given
in the Representation of People Act, 1951, Section 62 (5), a person in prison, ―under sentence
of imprisonment or transportation or otherwise, or in the lawful custody of the police‖ is not
eligible to cast his vote in an election.
3.3 PRISONER’S RIGHTS UNDER THE PRISONS ACT, 1894
Prisons Act, of 1894 is the first legislation regarding prison regulation in India. This Act
mainly focus on reformation of prisoners in connection with the rights of prisoners.
Following Sections of the Prisons Act, 1894 are related with the reformation of prisoners:-
 Accommodation and sanitary conditions for prisoners,

 Provision for the shelter and safe custody of the excess number of prisoners who
cannot be safely kept in any prison,
 Provisions relating to the examination of prisoners by qualified Medical Officer,
 Provisions relating to separation of prisoners, containing female and male prisoners,
civil and criminal prisoners and convicted and undertrial prisoners,
 Provisions relating to treatment of undertrials, civil prisoners, parole and temporary
release of prisoners.
57
Upendra Baxi v. State of U.P., (1983) 2 SCC 308.
58
M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.
59
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81.
60
Jagmohan Singh v. State of U.P., AIR 1973 SC 947.
61
Rattiram v. State of M.P., (2012) 4 SCC 516.
P a g e | 31
In the year of 2016 the Parliament has been passed the Prisons (Amendment) Bill, 2016 to
amend the Prisons Act, 1894 with a view to provide protection and welfare of the prisoners. It
can be said that the prisoners are also entitled to all his fundamental rights while they are
behind the prisons. Indian Constitution does not expressly provides for the prisoners‘ rights
but Articles 14, 19 and 21 implicitly guaranteed the prisoners‘ rights and the provisions of the
Prisons Act, 1894 contains the provisions for the welfare and protection of prisoners. The
Court has ruled that it can intervene with prison administration when constitutional rights or
statutory prescriptions are transgressed to the injury of the prisoner. Supreme Court in many
cases held that prisoner is a human being, a natural person and also a legal person. Being a
prisoner he does not cease to be a human being, natural person or legal person. Conviction for
a crime does not reduce the person into a non person, whose rights are subject to the whim of
the prison administration and therefore, the imposition of any major punishment within the
prison system is conditional upon the absence of procedural safeguards.
Prisoners, both convicts and under trials, in the country, cannot vote in the elections. This
issue has been settled once again by the Election Commission of India (EC). But there is still
confusion among prison officials regarding voting rights of prisoners. Officials agree that
convicts cannot vote but in so far as under trials are concerned; they say they can exercise
their franchise if they want to. Prison officials, however, maintain there has never been an
instance of under trials casting votes in any election so far.
There is, however, an exception. Those who have been detained under the Goondas Act,
National Security Act (NSA) and Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act (Cofeposa) can cast their votes from prison itself62. A ballot paper
is sent to the detainee in prison and he can cast his vote. The ballot paper is sent back to the
returningofficerbythe prisons department.
That under trials cannot cast their votes has been made clear in the latest General Elections
2014 Reference Handbook but there still seems to be confusion about it in the prison
department. An official of the department said, if under trials want to cast their votes, the
prison will facilitate that. However, the prisoner will have to ask his family to get his voter
identitycard.
Based on the voter identity card, prison officials will inform district election officers or
returning officers. They will then send ballot papers and the under trials will be able to cast
their votes on polling day. "However, nobody has even taken the interest to cast their vote,"
What is more important to note is that the EC has ruled that under trials, apart from convicts,
cannot vote. "No, prisoners cannot vote," said M A Fahim Saberi, OSD in the office of the
chief electoral officer.
Chapter 43 of the General Elections 2014 Reference Handbook also makes it clear saying,
62
https://timesofindia.indiatimes.com/news/Prisoners-cant-vote-but-detainees-can-
EC/articleshow/33146529.cms
P a g e | 32
"Under trial prisoners and persons confined in prison otherwise are not eligible to vote, even
if their names are registered in the electoral votes. However, persons under preventive
detention are eligible to vote by post as per Section 62 (5)." According to Section 62 (5) of
the Representation of the People Act, 1952, "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 police." The sub-section further provides that nothing
in it will apply to persons subjected to preventive detention under any law.
Cherlapalli central prison superintendent K S Srinivasa Rao said that there were a few
detainees in prison who would be eligible to vote and it will be facilitated through postal
ballot.
There are 4,613 convicts in AP jails as on date. Apart from them, there are also 9,743 under
trials. According to sources, there are five detainees and nine civil prisoners and only they
will be eligible to vote63.
Whether prisoners should have the right to vote has been the subject of intense political
debate in the UK for a few years now. In Hirst ((2006) 42 E.H.R.R. 41) as well as Scoppola
([2012] E.C.H.R. 868), the European Court of Human Rights (ECtHR) held that blanket
prohibitions on the voting rights of convicted prisoners are incompatible with article 3 of the
First Protocol to the European Convention on Human Rights. The Scottish Registration
Appeal Court also made a declaration of incompatibility against the UK‘s blanket ban on
prisoner voting (Smith v Scott [2007] C.S.I.H. 9)64. The British government has introduced a
draft bill for pre-legislative scrutiny in which two out of three options laid out by the
government seek to purge the incompatibility, while the third restates the existing ban.
Regardless of how the story develops, the debate that has unfolded is an important one in the
context of a constitutional democracy which pledges a commitment to human rights.
A similar concern underpins the short but significant decision of the Supreme Court of India
in Chief Election Commissioner v Jan Chaukidar (Civil Appeals 3040-3041 of 2004, decided
on 10 July 2013). This was an appeal from the judgment of the Patna High Court declaring
that prisoners and those in lawful police custody would be disqualified from contesting
elections to the Union Parliament or the legislative assemblies of states. The case arose in the
context of the steady flow of politicians accused of criminal offences into legislative bodies
(several studies reveal that about a quarter of the elected members of the Indian Parliament
face criminal charges). An NGO filed a public interest litigation petition seeking a declaration
that convicted and undertrial prisoners had no right to contest elections.
The NGO‘s argument (which the court accepted) was framed as follows. The Representation
of the People Act 1951 is a federal statute that governs the conduct of elections in India. It
63
https://timesofindia.indiatimes.com/news/Prisoners-cant-vote-but-detainees-can-
EC/articleshow/33146529.cms
64
: C. Chandrachud, ‘Prisoner Voting Rights in India’ UK Const. L. Blog (8th August 2013)
P a g e | 33
stipulates that one of the qualifications for membership of legislative bodies is that the
candidate must be an ‗elector‘. It also provides that ‗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‘ (except in cases of preventive detention).
Relying on these and other statutory provisions, the court decided that since prisoners were
deprived of the right to vote, they could not be considered as ‗electors‘ and would
automatically be disqualified from standing for elections during periods of incarceration.
Although the court‘s intentions may have been laudable, its line of reasoning is problematic
at several levels. To begin with, the Supreme Court took for granted that the blanket ban on
prisoner voting is itself compliant with fundamental rights, a position which is highly
controversial in the UK and elsewhere and has not been considered by the Indian Supreme
Court for the last sixteen years. As in the UK, there is no offence-based or sentence-based
classification of prisoners in India, with the result that prisoners are debarred from voting
irrespective of the gravity of the offence that they have committed or the length of their
sentence. But the ban on prisoner voting in India is more sweeping than that that imposed by
section 3 of the UK Representation of the People Act 1983 in one respect65. Whereas the UK
prohibits convicted prisoners from voting, the Indian disqualification extends to those
awaiting trial and those in lawful police custody as well. Remarkably, this means that those
whom we presume innocent until proven guilty are denied the right to vote.
One of the reasons for which the Supreme Court found it unnecessary to examine the
constitutionality of the ban on prisoner voting was that the court erroneously considered the
right to vote as a statutory endowment which can be revoked at any time by a majority in
Parliament. It remarkably endorsed the observation of the Patna High Court that it is a
‗privilege to vote, which privilege may be taken away.‘ The characterisation of the right to
vote as a privilege is deeply problematic. It fits poorly with most modern conceptions of
democracy, which accord a fundamental (and sometimes even predominant) status to the
right to participate in democratic decision-making through the ballot box.
The Supreme Court founded the decision that prisoners have no right to contest elections
based on the argument that prisoners are not electors, since they are disqualified from voting.
This interpretation implies that the disqualification from contesting elections will remain so
long as prisoners are debarred from voting. This does not bode well for future challenges to
the sweeping ban on prisoner voting rights in India, since the invalidation of this statutory
provision would bring down with it the ban on contesting elections, which has received
widespread judicial and public support in the recent past. So the court has unknowingly made
it more difficult for itself to strike down the ban on prisoner voting rights in the future.
Overall, the Supreme Court‘s judgment is based on a skewed understanding of democracy.

This is demonstrable through a concluding portion of the Patna High Court judgment, which
65
Ibid.
P a g e | 34
was affirmed by the Supreme Court on appeal: ‗the issue of crime as attached to candidates or
voters pollutes the entire election process. It affects the sanctity of elections as a whole. It
taints democracy.‘ Even if one were to agree that disqualifying prisoners from contesting
elections is a proportionate restriction on political rights, it is difficult to accept that enabling
prisoners to vote would stain the sanctity of the democratic process 66. An important measure
of the success of a democratic state is how it treats those that lie at the margins, including
prisoners. The ban on prisoner voting then, which was glossed over by the Supreme Court, is
what really taints the democratic process by excluding an entire segment of peoples from the
exercise of their first democratic right. The Supreme Court would have benefitted from at
least examining whether, to borrow the words of the ECtHR in Scoppola, the ‗general,
automatic and indiscriminate restriction‘ on the right to vote is permissible in a professedly
diverse and inclusive constitutional polity67.
In India opposition is basically due to an emotional reflex that the person alleged for
committing an offence has violated some or the other right of another bonafide citizen of
India or has committed a wrongful act against the State and so his rights should be seized. A
person who does not abide by a law and the values of the society deserves this punishment of
being barred from having any say in the democratic setup of the system.
Even the Constitution of India provides for adult franchise with some restrictions imposed by
Article 326 which reads as—
―The elections of the house of people and of the legislative assembly of every state shall be
on the basis of Adult Franchise; that is to say, every person who is a citizen of India and who
is not less than eighteen years of 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.‖ 68
Even according to the Indian Legal System, under section 62 (5) Representation of People
Act, 1951 –
―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.‖
66
: C. Chandrachud, ‘Prisoner Voting Rights in India’ UK Const. L. Blog (8th August 2013)
67
Ibid.
68
https://www.lawteacher.net/free-law-essays/administrative-law/an-enquiry-into-the-prisoners-right-to-
vote-administrative-law-essay.php
P a g e | 35
In Anukul Chandra Pradhan vs Union of India, the Supreme Court upheld the validity of the
provisions of section 62(5) of the Representation of Peoples Act, 1951 on two grounds; firstly
that Article 14 does not affect it, and secondly the Court observed69:
―The right to vote is subject to the limitations imposed by the statute which can be exercised
only in the manner provided by the statute prescribing the nature of the rights to elect cannot
be made with reference to fundamental rights in the Constitution. The very basis of challenge
to the validity of sub sec (5) of sec 65 of the Act is therefore, not available and this petition
must fail.‖
3.4 BAN ON RIGHT TO VOTE OF PRISONERS: AN ANALYSIS
Adult Franchise is the very essence of democracy especially in India. This is exercised in a
way to express one‘s will of being governed. This gives a voice to every citizen in India
making them a citizen in true sense. This is a method to show one‘s consent or dissatisfaction
about methodology of governance applied on him. This gives a Right to choose his
representative in general elections in the name of ‗Right to Vote‖70. Therefore this right to
vote in India should emanate from Article 19(1) (a) of the Constitution, i.e., Right to freedom
of speech and expression. Likewise it becomes the Fundamental Right to an individual to
vote in general elections and choose his representative. In this way Section 62 (5) of
Representation of People Act, 1951 becomes violative of one of the major Fundamental Right
guaranteed by the Constitution of India. Although the jurisprudence of fundamental rights
always provides for exceptions in the name of ‗reasonable restrictions‘. Article 19 (2)
provides for ‗reasonable restrictions‘ on Article 19 (1) (a), i.e. , Security of State, Friendly
relations with foreign States, Public Order, Decency or Morality, Contempt of Court,
Defamation, Incitement to an offence, Sovereignty and integrity of India. The ban on Right to
Vote by the prisoners (convicted or under trials) cannot be justified on any of the exceptions
to the right guaranteed.
Moreover, this concept of adult franchise is enumerated in Article 326 of Constitution of

India. And this is the article from which the voting rights in general election find its
legitimacy. But while magnifying this article, it could easily be seen that it lays some
restrictions on right to vote in general elections. This is done by legislature in cases of ‗non
residence, unsoundness of mind, crime or corrupt or illegal practices‘. But Section 62 (5) of
Representation of People Act, 1951 restricts voting rights of not only convicted but also
under trials. This leads to widening of the term ‗crime‘ under this article to such an extent so
as to include under trails also. This is against the principles of criminal justice in India as an
accused is considered innocent until proven guilty but here before proving guilt punishment
69
Ibid.
70
P a g e | 36
of being lesser citizen is awarded. This causes a serious concern for the legislature to
reconsider the law and frame and enforce accordingly.
A democracy is premised on the notion that the voters select the politicians, not the
politicians who select the voters. India is considered the second largest democracy in the
world. But does India deserve to hold this title in true sense? The Constitution of India faced
emergence of a totally new concept of ―basic structure‖. The concept included lawful
components like fundamental rights, federal structure etc which cannot be amended against
the spirit of Constitution. This great concept includes the free and fair elections also, in turn
including the right of participation in elections71. So even this right shall be considered the
basic structure of the Constitution of India, most sacred document ever made in Indian polity.
But simply an Act took away this Right from few citizens of India making then lesser citizens
than others. This becomes against the spirit of not only Constitution but also against
democracy. This shows that India is a state which talks about giving all kinds of fundamental
and human rights to not only criminals not also to those who are just alleged of an offence,
but still has never thought about giving this right to them.
According to the ban on this right, the government must show that allowing prisoners to
exercise this right infringes the rights of others. Giving prisoners the right to vote would aid
their rehabilitation, which is essential if they are to avoid reoffending after being released.
Denying prisoners the right to vote implies that they are lesser citizens damaging their dignity
and sense of self-worth, undermining efforts to help them control their behaviour. Voting
encourages prisoners to take an interest in current affairs, which will aid their reintegration
into society72. An offender once punished under the law should not incur the additional
penalty of loss of the franchise. The principle aim of the modern criminal law is to
rehabilitate offenders and orient them positively toward the society which they will re-enter
on their release. It is understandable that this process is assisted by a policy of encouraging
offenders to observe their civil and political obligations.
3.5 EMPIRICAL METHOD
The methodology adopted in the present study is empirical. The study has been carried on a
legal proposition or proposition by way of analyzing the existing statutory provision and the
cases by applying the reasoning power. Different aspects has been studied keeping in mind
the existing laws relating to prisoner‘s right to vote, penal provision, constitutional provision,
rules and regulation of the jail which is solely for the Academic purpose only relating to
prisoner‘s right to vote .
71
Ibid.
72
P a g e | 37
The source of material for study is collected from the inmates of the jharpada jail in the state
of odisha and the following records are only for the fulfilment of the academic criteria and
not for any other use.
At present 89 jails function in the odisha state with the capacity to accommodate 18,012
inmates. Currently 15,789 inmates including 3594 convicts are lodged in jail across the state.
Out of the total convicts women constitute only 4 percent. As in the case of jharpada jail as
per the officials and according to sources, there are five detainees and nine civil prisoners and
only they will be eligible to vote.
The first case is related to the Under-trial Mayurbhanj MP who had contested the elections
and won from a majority of votes from his constituency was being held in a chit fund scam in
2014 where he upon putting forth his application to the court during his under trail to contest
for the presidential election where The court had earlier denied him bail to exercise his
franchise in the Presidential election held but afterward the CBI court here granted him
permission to cast his vote in the Vice Presidential (VP) election.
Superintendent of Jharpada Jail, Dhirendranath Barik said that 17 of them were given
chance to cast their votes on previous election of the final phase of polls in the state. There is
no official explanation as to why other prisoners were denied the right to vote. The jail
authority had written official letters seeking information on whether the inmates of the jails in
the state shall be given a chance to cast their votes in the Lok Sabha elections.
The second case is of an Under-trial MLA of the prominent party in odisha arrested by the
CBI from his Mahanadi Vihar in Cuttack for his alleged involvement in the multi-crore chit
fund scam in Odisha. Where he has put forth an application to the authorities seeking him
grant to contest elections from his constituency for which following order is being awaited
from the authorities concerned for granting him to contest for the same.
The third case where the inmate is being convicted in the ponzi chit fund scam who was one
among the 17 who casted his vote by the chief electoral officer recommending voting rights
for prisoners which was done through postal ballots upon the foresaid application by the
inmate to cast his vote during elections.
Superintendent of Jharpada Jail, during an interaction said that those who have been
detained under the Goondas Act, National security act (NSA) and conservation of foreign
exchange and prevention of smuggling activities act (Cofeposa) can cast their votes from
prison itself. A ballot paper is sent to the detainee in prison and he can cast his vote. The
ballot paper is sent back to the returning officers by the prison department. Based on the voter
identity card, prison officials will inform district election officers or returning officers. They
will then send ballot papers and the under trials will be able to cast their votes on polling day.
P a g e | 38
However, nobody has even taken the interest to cast their vote as during the last few years as
few were interested to do so.
As during an interaction with the Bhubaneswar state election commissioner it as said that the
Election Commission of India has written to the Chief Secretaries of the States to make
arrangements for those under preventive detention to exercise their franchise through postal
ballot by pointing out that sub-section (5) of Section 62 of the Representation of the People
Act, 1951 confers voting rights on ―electors subjected to preventive detention.‖ And Rule 18
of the Conduct of Elections Rules, 1961 states that such detainees are entitled to cast their
vote through postal ballot.
P a g e | 39
CHAPTER-IV
RIGHT OF PRISONERS TO VOTE: A GLOBAL OVERVIEW
4.1 INTERNATIONAL PERSPECTIVE
The right to vote for people deprived of their liberty varies widely from country to country,
and even within some countries (eg. the USA). In some countries voting rights for prisoners
are subject to restrictions and/or conditions, whereas in other countries people convicted of an
offence are automatically disenfranchised for the period of their prison term, or even after
they have served their time of parole.
This aims to provide a brief overview of the extent of (dis)enfranchisement of detained

persons in a range of jurisdictions. In countries where voting rights are partially restricted or
completely denied, conditions and the rationale for these restrictions are, where possible,
identified.
AUSTRALIA
In Australia, the Commonwealth Franchise Act 1902 disqualified from voting those
convicted and under sentence ‗for any offence punishable by imprisonment for one year or
longer‘. The provision remained substantially the same when the Commonwealth Electoral
Act 1918 was enacted, and so it stood until 1983, when the disqualification was amended to
apply to persons ‗under sentence for an offence punishable under the law of the
Commonwealth or of a State or Territory by imprisonment for five years or longer‘. The
effect of the introduction of that provision was to reduce the numbers of prisoners
disqualified from voting.
CANADA
The Canadian Supreme Court in Sauve v. Canada (Chief Electoral Officer) with respect to
the first objective of promoting civic responsibility and respect for the law, denying
penitentiary inmates the right to vote is more likely to send messages that undermine respect
for the law and democracy than enhance those values. The legitimacy of the law and the
obligation to obey the law flow directly from the right of every citizen to vote. To deny
prisoners the right to vote is to lose an important means of teaching them democratic values
P a g e | 40
and social responsibility73. The majority view is summarized in the reasons of the Chief
Justice:
The right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter of Rights and
Freedoms, lies at the heart of Canadian democracy. The law at stake in this appeal denies the
right to vote to a certain class of people—those serving sentences of two years or more in a
correctional institution. The question is whether the government has established that this
denial of the right to vote is allowed under s. 1 of the Charter as a ‗reasonable limit
demonstrably justified in a free and democratic society.‘ The right to vote which lies at the
heart of Canadian democracy, can only be trammelled for good reason.
UNITED STATES OF AMERICA
In the United States the opposite view prevails. In Richardson v. Ramirez Supreme Court
divided six to three in favour of upholding a Californian provision disenfranchising ‗persons
convicted of an ―infamous crime‖. It should be noted that this provision applied, not only to
those serving sentences, but to those who had completed their sentences and been released.
The decision of the majority was based largely on a provision (Article 2) to the Fourteenth
Amendment to the United States Constitution, which contemplated that persons who had
participated in ‗rebellion or other crime‘ might be disqualified from voting. The United States
Supreme Court has also upheld a state provision imposing a literacy requirement as a
qualification for voting74. Only two US states (Maine and Vermont) permit prisoners to vote,
although Utah and Massachusetts also did so until 1998 and 2000 respectively.
In France and Germany, courts have the power to deprive people of voting rights as an
additional punishment, but this is not automatic. Eighteen European states, including Spain,
the Netherlands and the Republic of Ireland, place no formal prohibition on prisoners voting.
4.2 INTERNATIONAL INSTRUMENTS
Academic debate has tended to favour prisoner enfranchisement, on multiple grounds. In

these accounts, the vote is seen as a fundamental, if not inalienable, human right in
International law, whose denial to prisoners is indirectly racially discriminatory75.
Article 21 of Universal Declaration of Human Rights provides for ‗the right of every
individual to take part in the government of his country, directly or through freely chosen
representatives.‘
73
74
75
IBID.
P a g e | 41
Article 25 of the ICCPR states:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions: To vote and to be elected at
genuine periodic elections this shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the electors76.
The distinctions mentioned in Article 2 are distinctions ‗of any kind, such as race, color, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status‘.
Article 10(3) of the ICCPR provides:
‗The penitentiary system shall comprise treatment of prisoners the essential aim of which
shall be their reformation and social rehabilitation.‘ The International Convention on the
Elimination of All Forms of Racial Discrimination requires states to guarantee to everyone,
without distinction as to race, political rights, the right to vote and to stand for election, on the
basis of universal and equal suffrage. All these international documents recognize the right
to adult franchise not only as a fundamental, inalienable right but also as human right.
4.3 LEGAL FRAMEWORK
The right to vote – without discrimination – is set out in the Universal Declaration of Human
Rights (UDHR), which provides that ‗everyone has the right to take part in the government
of his country, directly or through freely chosen representatives‘ (article 21)77.
The UDHR, though not a treaty in itself, is generally considered customary international law
and therefore has binding status. The International Covenant on Civil and Political Rights
(ICCPR), which is legally binding on the 168 State Parties that have ratified it, indicates that
the right to vote is to be exercised through voting in ‗genuine periodic elections which shall
be by universal and equal suffrage ‗and 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‘. Though international law does not offer specific provisions on voting
rights for prisoners as such, it is clear that, ‗[e]xcept for those limitations that are
demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human
rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and
where the State concerned is a party, the International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional
76
Ibid.
77
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
P a g e | 42
Protocol thereto, as well as such other rights as are set out in other United Nations
covenants‘78.
Although not an absolute right, limitations to the exercise of the right to vote need to be
Objective and reasonable, and the length of the suspension of this right should be
proportionate to the offense and the sentence79. Pre-trial detainees should not be excluded
from exercising their right to vote as they must be considered innocent unless and until
proven guilty.
Restrictions / conditions
In the approximately 55 per cent of the jurisdictions surveyed where prisoners have the right
to vote in principle, restrictions and/or conditions still apply. These limitations are generally
based on the severity or type of offence and/or the length of the sentence imposed. In Iceland,
the Electoral Law restricts the civil rights of offenders who: have committed a crime
‗considered heinous by public opinion‘, have reached the age of 18 at the time the offence
was committed, and are convicted to at least four years in prison without probation80.
The right to vote in Kuwait is not dependent on the length of the prison sentence, but on the
severity of the offence. The Electoral Law denies voting rights to those ‗convicted of a
criminal felony or an offense involving moral turpitude or breach of trust, until he is
rehabilitated‘81.
Deprivation of voting rights can therefore continue after the prisoner‘s release. In some
countries, restrictions are related to the type of election. For example, in the Czech Republic
and Latvia, prisoners may not be entitled to vote in local elections on the grounds that they
are 'not affected by local issues'.
In Ukraine, prisoners are not entitled to vote in local elections as they are not deemed to be
part of a local community during their imprisonment. It is important to note that a similar
restriction applies to military personnel and students in Ukraine. On the grounds that
prisoners remain citizens of their country, their entitlement to vote in national elections is
upheld.
Rationale
In only a small number of jurisdictions is a rationale offered by legislators or the judiciary for
restricting or completely revoking the right to vote. If provided, it is generally based on the
78
Art 2, International Covenant on Civil and Political Rights
79
UN General Assembly, Basic Principles for the Treatment of Prisoners: resolution / adopted by the General
Assembly, 28 March 1991
80
Electoral Law, art. 5, available at: http://eng.innanrikisraduneyti.is/laws-and-regulations/nr/6713
81
Law No. 35 of 1962 (Regarding The Election OfThe National Assembly Members) (the “Electoral Law”), art. 2
P a g e | 43
premise that those who have committed crimes against the public should not be allowed to
determine or participate in political processes. In Poland, the court may impose deprivation of
public rights if the following conditions are cumulatively met: a) the accused is sentenced to
imprisonment for not less than three years, and b) the court finds that the criminal offence in
a given case has been committed with a ‗motivation deserving special condemnation‘.
This ‗motivation deserving special condemnation‘82 is considered the main criterion for the
court to deprive a person of public rights, including the right to vote, and is explained in
jurisprudence as those motives that run particularly strongly against the established social
norms, and that result in commitment of a criminal offence that is intensely repellent to the
society at large, causing reactions of indignation or outrage83.
Since 2009, conviction to imprisonment in Belgium does not automatically lead to

disenfranchisement. Here, although temporary deprivation of voting rights is justified on the
grounds that that those who have committed certain offences are not worthy of exercising
these rights, it is also acknowledged that this does infringe on a fundamental right. Therefore,
a Belgian judge is tasked with a proportionality test: they must balance the possibility of
excluding ‗unworthy‘ citizens from exercising their right to vote with the requirement not to
deprive them disproportionately of a fundamental right. In Brazil, restriction of voting rights
is justified on ethical grounds: that it would be morally unacceptable for a person convicted
of a crime to participate in the country‘s political life, whether voting or running for public
office.
The Political Rights Law in Egypt was enacted in 2014. No insight into the legislator‘s
intention is available; however, in an explanatory note on the law it replaced, Law No. 73 of
1956, the legislator indicated that, by using his/her right to vote, an individual actively
participates in the country‘s social and political life and that a person who commits a crime
against public morality, or an offence ‗that tarnishes his or her reputation, should be excluded
from this participation due to his or her questionable character‘.
Alternatives to imprisonment
In the vast majority of jurisdictions surveyed, offenders serving non-custodial criminal

sentences are entitled to vote. However, in some jurisdictions (eg. Belgium, Ethiopia, and
Tunisia), disenfranchisement can be handed down by the court as an additional sentence,
which could result in restriction of voting rights of those serve a non-custodial sentence.
In other jurisdictions (eg. Brazil, Kuwait), the law does not distinguish between those
deprived of liberty and those serving non-custodial sanctions, and disenfranchisement
82
Penal Code (Kodeks karny) dated 6 June 1997, as amended, art. 39.
83
Appellate Court in Lublin decision dated 27 April 1999, case no. II AKa 12/99, Appellate Court in Cracow
decision dated 16 January 2002, case no. II AKa 308/01.
P a g e | 44
following a final court decision can therefore also affect those serving a non-custodial
sentence.
Exercising the right to vote
The findings indicate that prisoners‘ participation in elections can be low, even where they do
have the right to vote. For example, in the 2010 state elections in Victoria, Australia, only
26.4 per cent84 of the prison population exercised their right to vote. In the 2014 national and
provincial elections in South Africa, of the total prison population of 157,394, only 14,283
(approx. nine per cent) of the prison population registered to vote 85. There are several
possible causes for these low participation levels. Practical difficulties such as limited
provision of information in prisons on how to register for vote, complicated procedures in
casting votes, and the failure by governments and/or prison management to facilitate voting
are likely to be contributing factors.
In Uganda, for example, the right to vote is protected under the Constitution, which does not
make a distinction between the right of prisoners and other citizens. The Uganda Prisons Act
of 2006 is silent on the voting rights of prisoners, but it does confirm that prisoners‘ rights are
subject to the Constitution. In practice however, there is no regulatory framework in place to
ensure that prisoners are able to exercise their right to vote. In its 2015 annual report, the
Uganda Human Rights Commission noted that Ugandan inmates, including those held in
remand and pre-trial detainees, ‗were not allowed to register [to vote] and there was no
mechanism in place for their registration‘86.
As registration is a prerequisite to being able to vote, this means that Ugandan prisoners are
prevented from exercising this constitutional right. Similarly, in Kenya, the Constitution
(adopted in 2010) protects prisoners‘ right to vote. In 2012 a complaint was brought
successfully before the High Court in Nairobi about the alleged failure of the Independent
Electoral and Boundaries Commission (IEBC) to facilitate prisoners‘ right to vote for the
2013 general elections. The Court found that, while the IEBC had not deliberately excluded
prisoners from voting, it had failed to meet its obligation to facilitate prisoner voting. It stated
that the setting up of registration and polling centres for prisoners did not constitute sufficient
facilitation and promotion of the right to vote.
The Court stated that the IEBC cannot ‗be a passive actor‘ but must have ‗an activist sense in
ensuring fundamental rights are promoted and fulfilled‘ and quoted a previous judgement
which stated that the Constitutional right to vote ‗not only puts a bulwark against any
government action that infringes on that right but also necessarily places a positive obligation
84
Prisoners and Voting’, Victorian Electoral Commission
85
The voter turnout of the general population was 73.48 per cent. Electoral Commission National and
Provincial Elections Report 2014
86
Ibid,at para. 9; Kaur v. Ministry of Justice, National Cohesion and Constitution Affairs and Others, Petition
556 of 2012 at para
P a g e | 45
on the State to ensure that its citizens vote voluntarily‘87. In Ireland, while, according to the
Irish Prison Service (IPS), ‗considerable efforts‘ are made to facilitate voting for prisoners
and prisoners acknowledge that it is easier to vote for them in prison than elsewhere, prisoner
participation remains very low. In general, only one in five prisoners who register to vote end
up voting and for the Children‘s Referendum in 2012, only eight per cent of the prison
population exercised their right to vote. During an interview with a focus group of prisoners
at Wheatfield Prison, most of those who didn‘t vote indicated they had ‗little interest in the
issues or candidates‘ and preferred to spend their time studying or working, rather than
voting.
A prison service spokesperson attributes low participation levels also to the current
registration procedures: ‗As registration only takes place once a year the population may be
totally different come election times. With regard to the supplementary register, you only
have a two-day window to after the election is called to get the forms out and return the
completed forms to the council‘.
Reinstating voting rights post‐release
In some jurisdictions (eg. the majority of US states, Belgium, Luxembourg, Kuwait, Poland)
voting rights may not be automatically reinstated upon release from prison. In Luxembourg,
for example, a prison sentence of more than ten years automatically entails a lifelong
disenfranchisement and this may also be decided against a person sentenced for a felony to
imprisonment of between five and ten years.
In 11 US states, voting rights for former prisoners are restricted indefinitely. In Kentucky,
Florida and Iowa, former prisoners cannot vote unless the state Governor personally restores
their rights. In November 2015, with only two weeks left in the office, Governor Steve
Beshear of Kentucky issued an executive order restoring voting rights for non-violent former
offenders who had completed their sentences, allowing 170,000 former offenders to register
to vote88.
However, on 22 December 2015, his newly elected successor rescinded the executive order,
stating that restoration of voting rights for former prisoners is ‗an issue that should be
determined by an act of the General Assembly and amendment to the Constitution‘. Hence,
people with a criminal conviction in the state of Kentucky still need to apply individually to
the Governor to have their voting rights restored.
87
Ibid,at para. 9; Kaur v. Ministry of Justice, National Cohesion and Constitution Affairs and Others, Petition
556 of 2012 at para
88
Ari Berman, Kentucky restores voting rights for thousands of ex-felons, The Nation, 24 November 2015
P a g e | 46
4.4 DEVELOPMENTS
Over the past decades, legislation and jurisprudence on (dis)enfranchisement of prisoners has
slowly developed. In 2001, two Russian prisoners brought a complaint to the UN Human
Rights Committee (HRC), in which they successfully argued that the blanket ban on prisoners
voting contained in the Russian Constitution violated art. 25 of the ICCPR. The HRC asked
Russia to amend its constitution to comply with the Covenant.
In 2005, the European Court of Human Rights (ECtHR) ruled in the case Hirst v the United
Kingdom (No 2), in which the blanket ban on voting rights for British prisoners was
successfully challenged. The Court elaborated that: ‗prisoners in general continue to enjoy all
fundamental rights and freedoms guaranteed under the Convention save for the right to
liberty […]‘, and that ‗any restrictions on these rights must be justified‘. The Court further
introduced a proportionality test, stating that ‗[t]he severe measure of disenfranchisement
must not […] be resorted to lightly‘, and that in order to limit the right to vote, as protected
under the European Convention of Human Rights89, ‗a discernible and sufficient link between
the sanction and the conduct and the circumstances of the individual concerned‘90, is
required. So far, the United Kingdom has ignored this ruling.
With the passage of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill
in 2010, adding Section 80(1)(d) to the New Zealand Electoral Act of 1993, any person
sentenced to a term of imprisonment is prohibited from voting in general and local elections.
Prior to the amendment only those sentenced to life imprisonment, preventive detention or a
term of imprisonment of three years or more were prohibited from voting. In 2015, the
compatibility of this blanket ban with the New Zealand Bill of Rights Act 1990 (NZBORA),
was challenged before the High Court. Section 12 of the NZBORA enshrines into national
law Art. 25 of the ICCPR. The Court declared the blanket ban inconsistent with the
NZBORA, sending a strong message to the Parliament that Section 80(1)(d) of the New
Zealand Electoral Act of 1993 contravenes the NZBORA, and by extension New Zealand‘s
international obligations under the ICCPR.
In 2015, the European Court of Justice decided that, EU member states can ban prisoners‘
voting rights, as long as it ‗takes into account the nature and gravity of the criminal offence
committed and the duration of the penalty‘. In introducing this proportionality test, the Court
confirms that a blanket ban on voting rights is likely to be unlawful.
89
Council of Europe, Protocol 1 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, 20 March 1952,
90
Hirst v the United Kingdom (No 2), [2005] ECHR 681
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Voting rights US States91
91
See http://felonvoting.procon.org/view.resource.php?resourceID=000286#kentucky[accessed 10 March
2016].
P a g e | 48
The rights guaranteed under Article 3 of Protocol No. 1 [to the European Convention on
Human Rights92] are crucial to establishing and maintaining the foundations of an effective
and meaningful democracy governed by the rule of law …Nonetheless, the rights bestowed
by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and
Contracting States must be allowed a margin of appreciation in this sphere.… There are
numerous ways of organising and running electoral systems and a wealth of differences, inter
alia, in historical development, cultural diversity and political thought within Europe which it
is for each Contracting State to mould into their own democratic vision.… Prisoners in
general continue to enjoy all the fundamental rights and freedoms guaranteed under the
Convention save for the right to liberty, where lawfully imposed detention expressly falls
within the scope of Article 5 of the Convention [guaranteeing the right to liberty and
security]. … Any restrictions on these other rights must be justified …There is no question,
therefore, that a prisoner forfeits his Convention rights merely because of his status as a
person detained following conviction. Nor is there any place under the Convention system,
where tolerance and broadmindedness are the acknowledged hallmarks of democratic society,
for automatic disenfranchisement based purely on what might offend public opinion.
This standard of tolerance does not prevent a democratic society from taking steps to protect
itself against activities intended to destroy the rights or freedoms set forth in the Convention.
Article 3 of Protocol No. 1, which enshrines the individual‘s capacity to influence the
composition of the law-making power, does not therefore exclude that restrictions on
electoral rights could be imposed on an individual who has, for example, seriously abused a
public position or whose conduct threatened to undermine the rule of law or democratic
foundations … The severe measure of disenfranchisement must not, however, be resorted to
lightly and the principle of proportionality requires a discernible and sufficient link between
the sanction and the conduct and circumstances of the individual concerned. … As in other
contexts, an independent court, applying an adversarial procedure, provides a strong
safeguard against arbitrariness.‖
The current law in the UK is that convicted prisoners (with few exceptions) are denied the
right to vote in national or local elections while they are incarcerated. Remand prisoners, and
sentenced prisoners imprisoned for contempt of court and for non-payment of fines, are
allowed to vote. The provisions disenfranchising offenders are in s3 of the Representation of
the People Act 1969, as amended in 1983 and 2000, which states that:
A convicted prisoner during the time that he is detained in a penal institution in pursuance of
his sentence . . . is legally incapable of voting in any parliamentary or local election.This
denial of voting rights has led to considerable criticism. At a time when the Government is
under attack for the erosion of civil liberties and is encroaching on rights across a wide range
92
Article 3 (right to free elections) of Protocol No. 1 to the European Convention on Human Rights provides
that: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot,
under conditions which will ensure the free expression of the opinion of the people in the choice of the
legislature.”
P a g e | 49
of issues, including extending pre-charge detention, restoring the right to vote to convicted
prisoners would be a positive step in affirming a commitment to fundamental rights.
Although critics have focused on rights violations in relation to control orders, extended
detention and the treatment of suspects, for example, in the Terrorism Act 2006 and the
Counter-Terrorism Bill 2007–08, the rights lost during detention have received less attention
but may still be significant.
The Government‘s justification for the ban, whether the arguments in favour of
disenfranchisement are convincing, and whether the problems raised by the ban will be
resolved by the Government‘s limited proposals for change. It will be argued that prisoner
enfranchisement would benefit both prisoners themselves and the wider society93.Although
the right to vote might seem less significant than other rights lost or diminished on
imprisonment, nonetheless the right to vote is significant symbolically as a recognition of
the prisoner‘s citizen status, and practically, as part of the process of rehabilitation. The
Government has been forced to address this issue, as the loss of voting rights for convicted
prisoners was successfully challenged in 2005 in Hirst v UK (No. 2) (2006) 42 EHRR 41 in
the European Court of Human Rights. The Strasbourg Court held that the UK‘s automatic
and ‗blanket ban‘ breached Article 3 of Protocol No. 1 to the European Convention on
Human Rights, which imposes an obligation on states to hold free elections under conditions
which will ensure the free expression of the people in the choice of the legislature. Although
the Court accepted that a wide margin of appreciation should be given to states, and that the
rights under Article 3 of Protocol No. 1 were not absolute, it ruled that a blanket voting ban
for all convicted prisoners fell outside the margin of appreciation.
Hirst had already completed the punitive part of his discretionary life sentence but was not
allowed to vote during the remainder of his sentence, when he was being detained on the
ground of public protection because of a perceived risk to the public. Hirst failed in the
Divisional Court in an application for a declaration of incompatibility in relation to the
provision in s3 of the Representation of the People Act 1983, but succeeded in Strasbourg.
The European Court of Human Rights recognized that states that had adopted the Convention
varied in their practice –some allowed all prisoners to vote, some allowed prisoners in certain
categories to vote, while others did not permit it at all.
But the Court held that the right should not be casually removed as this would undermine the
democratic process, especially as the UK ban excluded thousands of people from voting. The
case was referred in October 2005 to the Grand Chamber, which deals with cases raising
issues of great importance and questions of interpretation or the application of the
Convention94.It upheld the earlier decision of the Chamber in 2003.In the 2005 General
Election, the UK government did allow prisoners held on intermittent custody to vote if they
93
some of the ideas in this article were first presented in papers presented to the Criminal Justice Research
Group at Brunel University in 2006 and to the Sentencing and Punishment stream at the Socio-Legal Studies
Association Annual Conference at the University of Kent in April 2007
94
See www.echr.coe.int/echr.
P a g e | 50
were outside the prison on that day, but the numbers involved were negligible. But the ruling
in Hirst v UK means that the Government will have to amend the legislation. In response to
the judgment, the Government published Consultation Papers on this issue in December 2006
(DCA, 2006) and April 2009 (MJ, 2009), and the Government is now considering possible
changes, to allow some categories of prisoners to vote. It has engaged in a public consultation
process, and is considering possible options, before drafting new legislation. The second
Consultation Paper is considering how any proposed changes might be implemented.
The Government‘s proposed option is to determine eligibility to vote on the basis of sentence
and it invites views on the appropriate threshold and procedures for voting in prison. The
Strasbourg Court had been particularly critical of the fact that the ban was not the result of a
reasoned consideration of the issues, so a lengthy consultation process might be seen as a way
of meeting this concern. Cases were brought in Scotland and Northern Ireland challenging the
legality of the May 2007 elections on the grounds of incompatibility with the European
Convention and the Scottish National Party has also been campaigning on this issue. In Smith
v Scott [2007] a convicted prisoner denied registration brought a claim against the Electoral
Registration Officer95. The Scottish Court of Session said the legislation in the RPA could not
be read down as Convention compliant and that they intended to make a formal declaration of
incompatibility.
Lord Abernathy was critical of the length of time the Government has spent responding to
Hirst. However, in D.B. [2007] CSOH 73, Lord Malcolm refused to free a prisoner whose
licence had been revoked who wanted to vote in the May Scottish parliamentary elections.
Traynor and Fisher also brought a legal challenge in the Court of Session in Edinburgh to
stop the May 2007 elections proceeding, arguing that they were not Convention compliant, as
any changes in response to Hirst would not be made until the autumn Parliamentary session
at the earliest. Lord Malcolm acknowledged the incompatibility with Article 3 of Protocol
No. 1, but rejected their claim, noting that the Government was taking steps to deal with the
problem, but it would take time (Derek Traynor and James Fisher [2007] CSOH 78)96. A
similar case brought in Northern Ireland, by prisoners who were unable to vote in the March
Northern Ireland Assembly elections, also failed (Toner and Walsh [2007] NIQB 18).
The Government’s justification for the ban
Successive UK governments have taken the view that those who commit offences can
justifiably be disenfranchised, and that this is a reasonable restriction with a legitimate aim of
discouraging crime and promoting civic responsibility. Underpinning the Government‘s case
is the view that prisoners do not deserve the right to vote and that the ban is proportionate
because it is imposed in pursuance of legitimate aims, to promote respect for the law and as a
justifiable element of punishment.
95
96
Ibid.
P a g e | 51
The undeservingness of prisoners
The case for disenfranchisement reflects the view that prisoners are undeserving of rights. By
breaching the social contract, it is argued, prisoners have forfeited key citizenship rights. In
the UK and in many states of the US, convicted prisoners continued to be defined as non-
citizens in so far as they lose their right to vote. This also reflects the view in other areas of
legislation – for example, in the context of prospective changes in immigration and
nationality law – that the right to citizenship needs to be earned through good behaviour
97
.The right to vote has been construed as a revocable privilege rather than a fundamental
right, despite nearly a century of universal suffrage. The Government has generally favoured
granting privileges awarded for good behaviour, rather than rights, to prisoners, as privileges
are not legally enforceable.
Privileges can be used as a method of control to maintain order and discipline, whereas rights
incur costs in defending alleged breaches and, if they entail a rise in prison standards, in
meeting the courts‘ demands. The UK Government, and governments in many other
jurisdictions, have resisted prisoners‘ rights claims, including the right to vote, arguing that
prisoners do not deserve the same rights as ordinary citizens or special rights because they are
pris-oners, and specifically do not deserve the right to vote, because they lack moral standing
or ‗virtue‘. While modern concepts of citizenship do not link citizenship explicitly to virtue,
they do so indirectly, in so far as they see the prisoner as undeserving of the right to vote, or
to stand for public office, or to take part in the government of the country, because of their
misdeeds, while the less eligibility principle is used to reinforce the divide between the
deserving and the undeserving.
This was clear in the Government‘s submission in Hirst v UK when it argued that those who
had breached the basic rules of society should be deprived of: . . . the right to have a say in
the way such rules were made for the duration of their sentence. Convicted prisoners had
breached the social contract and so could be regarded as (temporarily) forfeiting the right take
part in the government of the country. The Government also made it clear in its first
Consultation Paper that it thinks it is morally right in principle to deny prisoners the right to
vote and that it believes that the majority of the public feel the same way (DCA 2006, paras
56, 57). Indeed, it invited comment in support of retention of the status quo (DCA 2006, para.
58). Although no formal or large-scale studies of public attitudes to re-enfranchisement have
been undertaken in the UK, when Hirst was decided in October 2005, a poll conducted in
Manchester by the Manchester Evening News found that 74 per cent were opposed to giving
prisoners the right to vote and 26 per cent were in favour [4].
The Government has argued that this restriction on voting is not excessive given that
prisoners have the right to vote restored when they return to the community. It is not
permanent, in contrast to some states in the US where felons are disen-franchised for life. The
97
See Home Office (2008).
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UK Government has also made much of the fact that many other states, including Russia and
America, withdraw voting rights from prisoners and, given the exceptionally high
incarceration rate of the United States and the fact that ex-offenders in some states are denied
the vote on release from prison, means that over 5 million people – are disenfranchised
because of criminal convictions. In the United States, 48 states ban sentenced prisoners from
voting and constitutional challenges to felon disenfranchisement have so far failed.
Historically, the voting ban represents the notion that prisoners are in a state of ‗civil death‘.
This status goes back to feudal times, where offenders forfeited property rights and family
rights on conviction, so property would be taken by the king or the state as an additional
punishment. Although the Forfeiture Act 1870 removed most of these sanctions, offender
disenfranchisement was retained and perpetuated in the UK by subsequent Representation of
the People Acts. Linked to this notion of moral corruption of the prisoner is the belief that
denying the offender the right to vote will ‗preserve the purity of the ballot box‘ (Washington
v State 75 Ala 582 (1884) at 585). The argument that offenders will sully the purity of the
ballot box by irresponsible or incompetent voting, or by electing those unfit to hold office,
has been a key influence in United States jurisprudence (see, for example, Shepherd v
Trevino, 575 F. 2d. 1110, (5th Cir. 1978), and Bailey v Baronian, 120 R.I.389, 394 A.2d
1338 [1978]). This view was also expressed by the Latvian government in its submission in
Hirst (at para. 55). One fear is that felons will elect criminals to important offices, leading to
the corruption of public life.
But is the denial of the right to vote those who lack moral virtue justifiable? This argument
was rejected by the European Court of Human Rights in Hirst who emphasized that the right
to vote was a right and not a privilege. While prisoners lost their right to liberty, their rights
under the Convention were not lost by the mere fact of imprisonment. The Court thought that
voting was an essential element of the democratic process which should not be casually
removed and that there ‗is no room in the Convention for the old idea of ―civic death‖ that
lies behind the ban on convicted prisoners‘ voting‘. Similarly, the Canadian Supreme Court,
in Sauvé v Canada No.2) [2002] 3 S.C.R. 519, argued that seeing prisoners as morally
unworthy to vote ‗runs counter to our constitutional commitment to the worth and dignity of
every citizen‘ which is essential to the legitimacy of the democratic process (McLachlin, CJ
at para. 35). The right to vote, the Court said, lay at the heart of Canadian democracy and the
blanket ban, in s51(e) of the Canada Elections Act 198598, which denied the vote to federal
prisoners serving over two years, was unconstitutional. The Court concluded that this was a
regressive and obsolete law which could not be justified in a modern democracy.
To deny the right to vote to the non-virtuous misunderstands the meaning of rights. The UK
Government‘s case is weak because rights do not rest on deservingness, but apply to all, even
to those whom we might see as unworthy individuals99. Fundamental civil and political
98
99
Ibid.
P a g e | 53
rights, such as the right to vote, are universal and do not depend on the moral character of the
right-holder. The defining feature of a right is that it should not be infringed simply because
others might think that the person is morally unworthy and this concept of a right is
fundamental to western liberal thought, exemplified by Dworkin‘s work (1977, 1986). It is
the mark of a civilized society to accord due process rights at the pre-trial and trial stages to
everyone regardless of the crimes of which they are accused, and this respect for rights
should also extend to the sentencing and punishment stages. Furthermore, as the right to vote
arguably has a special status, it is worthy of greater protection than other rights. To use moral
worth as a precondition would be moving on to a potentially politically dangerous slippery
slope.
The argument that prisoners do not deserve the benefits of citizenship because of their lack
of moral worth is also contradictory, as prisoners are expected to fulfil other civic
obligations imposed by the state, such as paying taxes, while in prison. A prisoner whose pay
exceeds the appropriate threshold is liable to pay tax and national insurance contributions. So
if the government imposes the burden, arguably the prisoner should also have some of the
benefits of citizenship, provided that the rights of others are not adversely affected, and in the
case of voting, no harms or risk to the public have been shown. Further, in the original
meaning of citizenship in ancient Greece, citizenship was seen as promoting virtue, in
imposing duties and obligations on citizens and directing their attention away from private
interests, and was not limited to the virtuous. The non-virtuous could retain citizenship
provided that they performed their public duties properly (Aristotle, 1992).
Participation in political life was itself seen as a means of improving moral behaviour as it
ensured that citizens looked towards the good of the polis rather than their own narrow
interests. This argument – that participation promotes a sense of civic responsibility – is also
found in Mill‘s work (1861). Similarly, allowing voting rights will encourage prisoners to
reflect on their obligations to other members of society.
Disenfranchisement as punishment
The second strand of the government‘s argument is that denying prisoners the right to vote
has a legitimate aim, namely to punish offenders as well as enhancing civic responsibility and
respect for the law. Loss of the right to vote, it is argued, is justifiable and reasonable, as it is
intended to discourage crime, and is an appropriate element of punishment. But is this denial
of a fundamental right of citizenship justifiable as a penal measure? In Hirst the Court
accepted that the government‘s aims to encourage civic responsibility and to impose
punishments were legitimate and compatible with Article 3 of Protocol 1, but concluded that
the ban was not rationally linked to those aims and was disproportionate and arbitrary. The
Court was influenced by the Canadian Supreme Court‘s ruling in Sauvé v Canada (No.2)
[2002] 3 S.C.R. 519 that felon disenfranchisement was unconstitutional because it was an
arbitrary and additional punishment.
P a g e | 54
As a retributivist measure, it is hard to justify as it is not clearly linked to desert, to the degree
of harm caused, the seriousness of the offence, or the culpability of the offender, but is a
blanket restriction which applies regardless of the seriousness or type of offence, which is
why the majority of the court in Hirst found it unacceptable. It is also an arbitrary and
variable punishment, as its impact will depend on the timing of an election, which itself
depends on the vagaries of political life rather than the prisoner‘s actions, which makes it
inconsistent with retributivism. It is not necessary for the purposes of punishment and is not
linked to the gravity of the offence or to the type of offence. It is not, for example, limited to
those convicted of electoral crimes. It is also a degrading punishment in so far as it reduces
the prisoner to a state of social death. But even if it were accepted as a legitimate punishment,
then this could not justify the UK ban, as in Hirst‘s own case, he was serving a discretionary
life sentence, and had already served the part of the sentence intended to punish, and was now
serving the extended part of the sentence deemed necessary to protect the public.
Justifying the ban on the grounds of deterrence is also difficult. It is hard to imagine that a
prospective offender would be influenced by the prospect of losing voting rights compared to
the threat of incarceration. Offenders may also be unaware of this disqualification, although
the issue has now received more pub-licity because of Hirst and subsequent cases. A
justification on the ground of rehabilitation is also problematic. The UK Government has
argued that denial of voting rights enhances civic responsibility but it could equally be argued
that disenfranchisement perpetuates isolation and social exclusion, whereas restoring the vote
and participation in the political process would assist rehabilitation by reminding prisoners of
the obligations and duties of citizenship and thereby encourage a sense of responsibility. As
the Canadian Supreme Court said in Sauvé v Canada (No 2) [2002] 3 S.C.R. 519 there is a
connection between having a voice in the making of law and the obligation to obey the law.
So the Court was not persuaded by the Canadian Government‘s argument that a voting ban
promotes rehabilitation or that it enhances respect for the law.
A major criterion in modern penal policy is public protection, but can prisoner
disenfranchisement be justified on this ground? If an offender had been convicted of voting
offences, there might be concerns of future interference with the electoral process, but the ban
is much more general and applies to all offenders. To justify the loss of the vote would need
an extra element of substantial risk, to override such a fundamental right, which would seem
to be lacking in most cases. A voting ban for offenders convicted of voting offences,
particularly where there is a risk of re-offending and committing further voting offences,
might be justifiable, but this would apply to very few sentenced prisoners. But even for those
convicted of voting offences it should apply only for a limited period.
This is not to deny that voting fraud has been a concern in recent UK elections, for example,
in the Birmingham local elections in 2004, where Mr Justice Mawrey (2005) said that the
evidence of fraud would have ‗disgraced a banana republic‘ [5].There were also concerns of
electoral fraud in the May 2007 local elections, including in Nottingham. A councillor in
Slough was convicted by an Election Court of illegal and corrupt practices relating to bogus
P a g e | 55
postal votes in the May 2007 elections and several other individuals have now been convicted
of electoral fraud in Slough Central Ward. But these problems are less likely to arise in the
prison environment as it is much easier to check on a prisoner‘s identity than on a postal
voter in the community. There are also now new measures to deal with voting fraud and to
increase confidence in the integrity of the electoral system, in the new Electoral
Administration Act 2006, based on the recommendations of the Electoral Commission
(2003). This Act strengthens registration procedures by requiring more information for postal
votes, including dates of birth and records of signatures. It creates a new offence of providing
false information for the purpose of registration when applying for a postal or proxy vote.
These measures reduce the risk of presentation but postal voting is still seen as the major risk
to electoral integrity in UK elections in a recent report by the Council of Europe
Parliamentary Assembly. There may also be concerns about block voting which might
possibly affect the outcome of an election. An example often given is of the Isle of Wight
constituency where the Isle of Wight Prison, created by the amalgamation of Parkhurst,
Albany and Camp Hill, has an operational capacity of 1658, is sited within the constituency
in which the successful candidate won by a majority of 2826 in the 2001 election, so with a
narrower majority the result might have been skewed by the prison vote. However, these
issues could be addressed by using the prisoner‘s former home address for registration. In any
case the problem of electoral fraud is not the main rationale of the government‘s denial of the
vote to prisoners.
4.4 INTERNATIONAL DECISIONS ON PRISONERS’ RIGHT TO VOTE: A

COMPARATIVE ANALYSIS
The following section provides a brief analysis and insight into how foreign and international
courts have interpreted prisoners‘ right to vote.
Canada
Section 3 of the Canadian Charter or Rights and Freedoms states that ―every citizen of
Canada has the right to vote in an election of members of the House of Commons or of a
legislative assembly and to be qualified for membership therein.‖
In 1985 the Canadian Elections Act was passed which prohibited prisoners from voting,
irrespective of the length of their sentence. This law was challenged in Sauvé v Canada in
1993. The Supreme Court held unanimously that a blanket ban infringed the constitutional
right to vote, guaranteed by section 3 of the Canadian Charter of Rights and Freedoms. In
response to the decision, the Canadian Parliament replaced the blanket prisoner
disenfranchisement law with a new law, denying the right to vote ―every person who is
imprisoned in a correctional institution serving a sentence of two years or more.‖ This
amended legislation triggered new litigation in 2002, Sauvé v Canada.
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In Sauvé 2, the Court ―conceded that s. 51(e) of the Canada Elections Act infringes s.3 of the
Charter [Canadian Charter of Rights and Freedoms]‖, thus the Court proceeded to embark on
a constitutional justification analysis. It is argued that the ―basis of Constitutional scrutiny
under the Canadian Charter of Rights and Freedoms is established in section 1 of the Charter,
which states that ‗―[t]he Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society‘‖. The Court thus embarked on a two-
stage analysis as formulated in R v Oakes. The first stage of the Oakes test requires one to
determine ―whether the objective behind the limit is of sufficient importance to justify
overriding a Charter right.‖ The second stage requires one to ―consider whether the
legislative measure chosen is rationally connected to the legislative objective, whether the
measure minimally impairs the Charter right which has been infringed, and finally whether
the effects of the measure are proportional to the significance of the objective and whether
the salutary and deleterious effects of the measure are proportional.‖ It is apparent that the
majority distinguished the more deferential approach taken by the dissenting judges, noting
that ‗―[t]he right to vote is fundamental to our democracy and the rule of law and cannot be
lightly set aside. Limits on it require not deference, but careful examination.‘‖
With regard to the application of the test, the Court noted that the government asserted two
objectives for denying prisoners the right to vote. Firstly, ―‗to enhance civic responsibility
and respect for the rule of law‘‖ and secondly ―‗to provide additional punishment, or enhance
the general purposes of the criminal sanction.‘‖
The Court then sought to establish whether a rational connection existed between the
government‘s stated objectives and the denial of prisoner voting. The government had
advanced three theories in support of the rational connection: first, ―that depriving prisoners
of the vote sends ‗an educative message‘ about the importance of respect for the law to both
prisoners and the society at large‖; secondly, ―that allowing penitentiary inmates to vote
‗demeans‘ the political system;‖ and third, that ―disenfranchisement is a legitimate form of
punishment, regardless of the . . . nature of the offence or the circumstances of the . . .
offender.100‖
The Court rejected the government‘s stated reasons for the denial of the right to vote,
including the propositions that prisoner disenfranchisement would enhance civic
responsibility, respect for the rule of law, and the general purpose of criminal sanction. The
Chief Justice, speaking on behalf of the Court, held that101:
―Denying penitentiary inmates the right to vote misrepresents the nature of our rights and
obligations under the law and consequently undermines them. In a democracy such as ours,
100
https://www.lawteacher.net/free-law-essays/human-rights/prisoners-right-to-vote-disenfranchisement-as-
punishment.php
101
Ibid.
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the power of lawmaker‘s flows from the voting citizens, and lawmakers act as the citizens‘
proxies. This delegation from voters to legislators gives the law its legitimacy or force . . . . In
sum, the legitimacy of the law and the obligation to obey the law flow directly from the right
of every citizen to vote . . . . The government gets this connection exactly backwards when it
attempts to argue that depriving people of a voice in government teaches them to obey the
law. The ‗educative message‘ that the government purports to send by disenfranchising
inmates is both anti-democratic and internally self-contradictory. Denying a citizen the right
to vote denies the basis of democratic legitimacy.‖
Furthermore, the court had the following to say in rejecting government‘s stated purposes for
the disenfranchisement of inmates:
―Section 51(e) does not meet the proportionality test. In particular, the government fails to
establish a rational connection between s. 51(e)‘s denial of the right to vote and its stated
objectives. With respect to the first objective of promoting civic responsibility and respect for
the law, denying penitentiary inmates the right to vote is more likely to send messages that
undermine respect for the law and democracy than messages that enhance those values. The
legitimacy of the law and the obligation to obey the law flow directly from the right of every
citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching
them democratic values and social responsibility102. The government‘s novel political theory
that would permit elected representatives to disenfranchise a segment of the population finds
no place in a democracy built upon principles of inclusiveness, equality, and citizen
participation. That not all self-proclaimed democracies adhere to this conclusion says little
about what the Canadian vision of democracy embodied in the Charter permits. Moreover,
the argument that only those who respect the law should participate in the political process
cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness
is inconsistent with the respect for the dignity of every person that lies at the heart of
Canadian democracy and the Charter. It also runs counter to the plain words of s.3 of the
Charter, its exclusion from the s.33 override, and the idea that laws command obedience
because they are made by those whose conduct they govern‖103.
The dissenting judges argued that since the constitutional question rested on ―philosophical,
political and social considerations which are not capable of ‗scientific proof‘, it was
appropriate to give Parliament significant deference.‖ The dissent concluded that ―[w]hile it
has been conceded that [the disenfranchisement law] does infringe s.3 of the Charter, the
infringement is reasonable limit that is demonstrably justified in a free and democratic
society.‖
102
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103
Ibid.
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4.5 EUROPEAN COURT OF HUMAN RIGHTS
Shortly after the Constitutional Court reached its decision in NICRO, the European Court of
Human Rights (―ECHR‖) made a landmark decision on prisoner disenfranchisement. In the
case of Hirst v. United Kingdom (Hirst 2), the ECHR considered a British law that put a
blanket ban on all prisoners, regardless of their crime, for the entire duration of their
sentence. The applicant was a prisoner serving a ―discretionary‖ life sentence for killing his
landlady. In 1980 he pleaded guilty to manslaughter on the grounds of diminished
responsibility. His tariff period (that part of the sentence relating to retribution and
deterrence) expired in 1994 and his continued detention was based on the Parole Board‘s
view that he presented a risk of serious harm to the public if released.
In 1983 Parliament re-enacted a blanket ban on prisoners serving a term of imprisonment

from voting in parliamentary or local elections. This ban was slightly modified by the
Representation of the People Act 2000, to allow remand prisoners to vote. The government
justified the blanket ban on the ground that it was part of a convicted prisoner‘s punishment
to lose the right to vote.
The applicant argued that the right to vote was one of the basic rights that underpinned a
democratic society and that the general ban was disproportionate, arbitrary and impaired the
essence of the right to vote. He argued further that, as a post-tariff prisoner the punishment
element of his sentence had been served and therefore no justification relating to punishment
could support his disenfranchisement.
The main issue is Hirst 2 was whether the prisoner disenfranchisement law violated Article 3
of Protocol No.1 to the Convention for the Protection of Human Rights and Fundamental
Freedoms of the Council of Europe, which states that ―[t]he High Contracting Parties
undertake to hold free elections at reasonable intervals by secret ballot, under conditions
which will ensure the free expression of the opinion of the people in the choice of the
legislature.‖ The Government claimed that the right to vote under Article 3 of Protocol No.1
―was not absolute and established jurisprudence accorded States a wide margin of
appreciation in determining the circumstances in which the right was to be exercised 104.‖ The
government argued that the blanket ban served two legitimate purposes: ―punishing offenders
and enhancing civic responsibility by depriving those who had breached society‘s rules of the
right to participate in the making those rules during the period of incarceration.‖
The Court examined extensively the Canadian decision of Sauvé 2 as well as the South
African decision of August. Thereafter the Court used the test established in Mathieu-Mohin
and Clerfayt v. Belgium105, to examine the tension between the British legislation and Article
104
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105
Ibid.
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3 of Protocol No.1. In terms of the test, ―[The Court] has to satisfy itself that the conditions
do not curtail the rights in question to such an extent as to impair their very essence and
deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and
that the means employed are not disproportionate.‖
With respect to the government‘s argument that ―under Article 3 of Protocol No.1 the right to
vote was not absolute and that a wide margin of appreciation was to be allowed to
Contracting States in determining the conditions under which the right to vote was
exercised‖, the Court held that, ―although a margin of appreciation did exist, the court does
not consider that a contracting state may rely on the margin of appreciation to justify
restrictions on the right to vote which have not been subject of considered debate in the
legislature and which derive, essentially, from unquestioning and passive adherence to a
historic tradition.‖
As stated earlier above, the British government asserted two objectives in support of the law
disenfranchising prisoners. It was argued firstly that, ―the law served to prevent crime and
punish offenders‖, and secondly that, ―it operated to ‗enhance civic responsibility and respect
for the rule of law ‗by depriving those who have seriously breached the basic rules of society
of the right to have a say in the way such rules are made for the duration of their sentence.‘‖
In its reasoning, the Court relied heavily on the reasoning of Sauvé 2. The Court was
skeptical about the objectives put forward by the government. Morgan-Foster points out that,
first, the Court was perturbed by the government‘s ―deter and punish‖ objective in light of the
fact that ―the loss of the right to vote plays no overt role in the sentencing process in criminal
cases in the United Kingdom‖, and that secondly ―the Court was also deeply skeptical of the
British government‘s objective of enhancing civil responsibility and respect for the rule of
law, concluding that ‗there is no clear, logical link between the loss of vote and the
imposition of a prison sentence, where no bar applies to a person guilty of crimes which may
be equally anti-social or ‗uncitizen-like‘ but whose crime is not met by such a consequence.‖
The court ultimately left these concerns as obiter dicta, and found the law incompatible with
the Convention in that it failed the proportionality test. The Court thus held that ―an
indiscriminate blanket disenfranchisement of all prisoners, irrespective of their crime or
length of their imprisonment, could not possibly withstand the proportionality test 106.‖ The
Court also emphasized the fact that ―a blanket ban was overly arbitrary, because a person
serving a mere week-long prison sentence would be disenfranchised if an election happened
to fall during that week.‖ With regard to the particular situation of the applicant, who had
completed his sentence and was being detained due to his personality disorder which made
him a potential danger to society, the Court ―found it impossible to accept that a law
premised on punishment, but encompassing such a case within its reach, could be considered
106
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proportional107.‖ Lastly, the Court found ―no evidence that the legislature in the United
Kingdom has ever sought to weigh the competing interests or assess the proportionality of the
ban as it affects convicted prisoners.‖ The Court therefore concluded that the general ban on
prisoner voting imposed in the United Kingdom was incompatible with Article 3 of Protocol
No.1.
In 2004 the government made a request for the case to be referred to the Grand Chamber,
which request was granted. In 2005 the Grand Chamber issued a judgment. In reaching its
decision, the Grand Chamber reviewed relevant provisions of the International Covenant on
Civil and Political Rights (―ICCPR‖), recommendations of the Council of Europe, surveyed
the law of member states of the Council of Europe, as well as Canadian and South African
decisions. In examining the case at hand, the Grand Chamber reaffirmed that the margin of
appreciation was wide and noted that ―‗[t]here are numerous ways or organising and running
electoral systems and a wealth of differences, inter alia, in historical development, cultural
diversity and political thought within Europe.‘‖ It further noted that ―‗[i]t is . . . for the Court
to determine in the last resort whether the requirements of Article 3 of Protocol No.1 have
been complied with‘‖, deciding whether ‗any conditions imposed . . . thwart the free
expression of the people in the choice of the legislature.‘‖
In its analysis the Grand Chamber emphasised that ―prisoners in general continue to enjoy all
the fundamental rights and freedoms guaranteed under the Convention save for the right to
liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the
Convention.‖ Since any restrictions on other rights require justification, the Court had to
―‗determine whether the measure in question pursued a legitimate aim in a proportionate
manner.‘‖ The Grand Chamber concluded that ―the aims proposed by the Government,
‗preventing crime and punishment offenders and enhancing civic responsibility and respect
for the rule of law‘, were legitimate, but found the means disproportional‘‖ concluding that:
―…section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to
vote a significant category of persons and it does so in a way which is indiscriminate. The
provision imposes a blanket restriction on all convicted prisoners in prison. It applies
automatically to such prisoners, irrespective of the length of their sentence and irrespective of
the nature or gravity of their offence and individual circumstances. Such a general, automatic
and indiscriminate restriction on a vitally important Convention right must be seen as falling
outside any acceptable margin of appreciation, however wide that margin might be, and as
being incompatible with Article 3 of Protocol No.1.‘‖
107
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4.6 CASES CONCERNING THE UNITED KINGDOM
Hirst (No. 2) v. the United Kingdom 6 October 2005 (Grand Chamber) Sentenced to life
imprisonment for manslaughter, the applicant was disenfranchised during his period of
detention by section 3 of the Representation of the People Act 1983 which applied to persons
convicted and serving a custodial sentence. In 2004 he was released from prison on licence.
The applicant alleged that, as a convicted prisoner in detention, he was subject to a blanket
ban on voting in elections.
The European Court of Human Rights held that there had been a violation of Article 3 (right
to free elections) of Protocol No. 1 to the European Convention on Human Rights on account
of the automatic and discriminate restriction on the applicant‘s right to vote due to his status
as a convicted prisoner. Greens and M.T. v. the United Kingdom 23 November 2010 the
applicants were both serving a prison sentence. The case concerned the continued failure to
amend the legislation imposing a blanket ban on voting in national and European elections
for convicted prisoners in detention in the United Kingdom.
The Court held that there had been a violation of Article 3 of Protocol No. 1. It found that the
violation was due to the United Kingdom‘s failure to implement the Court‘s Grand Chamber
judgment in the case of Hirst (No. 2) v. the United Kingdom (see above). Given in particular
the significant number of repetitive applications it had received shortly before the May 2010
general election and in the six following months, the Court further decided to apply its pilot
judgment procedure to the case108.
Under Article 46 (binding force and execution of judgments) of the Convention109, the United
Kingdom was required to introduce legislative proposals to amend the legislation concerned
within six months of the Greens and M.T. judgment becoming final, with a view to the
enactment of an electoral law to achieve compliance with the Court‘s judgment in Hirst (No.
2) according to any time-scale determined by the Council of Europe Committee of Ministers.
The Court also considered it appropriate to suspend the treatment of such applications which
had not yet been registered, as well as future applications, without prejudice to any decision
to recommence treatment of those cases if necessary. The consideration of approximately
2,000 similar pending applications against the United Kingdom was further adjourned until
24 September 2013 when the Court decided not to further adjourn its proceedings in these
applications and to process them in due course.
108
See the factsheet on “Pilot judgments”
109
www.coe.int/t/dghl/monitoring/execution/default_EN.asp?
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McLean and Cole v. the United Kingdom 11 June 2013 (decision on the admissibility) the
applicants, two prisoners, complained that they had been subject to a blanket ban on voting in
elections and had been, or would be, prevented from voting in various past and future
elections. The Court declared inadmissible the applicants‘ complaints under Article 3 of
Protocol No. 1 because they were filed too late or prematurely or because they were about
elections not covered by the European Convention on Human Rights
Dunn and Others v. the United Kingdom 13 May 2014 (decision on the admissibility) the
131 applicants, all prisoners, complained, inter alia, about the blanket ban on prisoners‘
voting rights in the United Kingdom in view of ―forthcoming‖ elections to the United
Kingdom or Scottish Parliaments.
The Court declared the applications inadmissible. It observed in particular that the applicants
had complained about forthcoming elections. Assuming that they had articulated sufficiently
clear complaints as regards any potential exclusion from those elections, the Court found that
they had failed to adduce the necessary facts to substantiate their complaints since they had
not subsequently confirmed that they were in post-conviction detention on the date of the
elections in question.
Firth and Others v. the United Kingdom 12 August 2014 This case concerned ten
prisoners who, as an automatic consequence of their convictions and detention pursuant to
sentences of imprisonment, were unable to vote in elections to the European Parliament on 4
June 2009. The Court recognised the steps taken in the United Kingdom with the publication
of a draft bill and the report of the Parliamentary Joint Committee appointed to examine the
bill. Given, however, that the legislation remained unamended, it concluded that there had
been a isolation of Article 3 of Protocol No. 1 because the case was identical to Greens and
M.T. (see above).
The Court rejected the applicants‘ claim for compensation and legal costs. As in previous
judgments concerning prisoners‘ right to vote, it held that the finding of a violation
constituted sufficient just satisfaction for any non-pecuniary damage sustained by the
applicants. As regards the applicants‘ claim for legal costs, the Court referred to its remarks
in the Greens and M.T. judgment, paragraph 120, where it had indicated that it would be
unlikely to award costs in future follow-up cases. It explained that the present applicants, in
lodging their applications, had only been required to cite Article 3 of Protocol 1 to the
Convention, allege that they were detained pursuant to a sentence of imprisonment of the date
of the election on question and confirm that they had been otherwise eligible to vote in that
election. The Court found that the lodging of such an application was straightforward and did
not require legal assistance110. It therefore concluded that the legal costs claimed had not been
reasonably and necessarily incurred.
110
FS_Prisoners_vote_ENG
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McHugh and Others v. the United Kingdom 10 February 2015 This case concerned 1,015
prisoners who, as an automatic consequence of their convictions and detention pursuant to
sentences of imprisonment, were unable to vote in elections. The Court concluded that there
had been a violation of Article 3 of Protocol No. 1because the case was identical to other
prisoner voting cases in which a breach of the right to vote had been found (see above) and he
relevant legislation had not yet been amended111. It rejected the applicants‘ claim for
compensation and legal costs.
Moohan v. the United Kingdom and Gillon v. the United Kingdom 13 June 2017
(decision on the admissibility) The applicants, who were serving prison sentences, were
ineligible to vote in the independence referendum organised in Scotland on 18 September
2014 since the relevant domestic legislation stipulated that a convicted person was legally
incapable of voting in the referendum if he was, on the date of the referendum, detained in a
penal institution in pursuance of the sentence imposed on him. The Court declared the
applications inadmissible, finding the applicants‘ complaint to be incompatible with the
provisions of the Convention and its Protocols. It noted in particular that the established case-
law strongly indicated that the Court considered that Article 3 of Protocol No. 1 did not apply
to referenda.
Disenfranchisement can be viewed as counter-productive to the purpose of imprisonment and

the role of a penitentiary system which – as outlined in the International Covenant on Civil
and Political Rights (ICCPR) and the UN Nelson Mandela Rules – is to rehabilitate offenders
and thereby reduce recidivism. The revised UN Standard Minimum Rules for the Treatment
of Prisoners (the Nelson Mandela Rules) – widely recognised as the blueprint for prison
management – state that the purpose of imprisonment can be achieved only if it is used to
achieve, ‗so far as possible, the reintegration of such persons into society upon release so that
they can lead a law-abiding and self-supporting life‘.
In addition, the Nelson Mandela Rules state that: ‐‗the prison regime should seek to minimize
any differences between prison life and life at liberty that tend to lessen the responsibility of
the prisoners‘; and ‐‗the treatment of prisoners should emphasize not their exclusion from the
community but their continuing part in it‘.
111
Ibid.
P a g e | 64
CHAPTER- V
CONCLUSION
5.1 CITIZEN RIGHT TO VOTE
The constitutional developments that have hitherto taken place represent more or less a
continuum. Barring aside some deviation, which calls for immediate attention their central
thrust, one may venture to suggest, paves the way, for the next progressive phase in which the
right to vote‘ would eventually include within its ambit the right to re-call‘. This is on the
basis of a simple axiomatic premise that the right to do inheres the ‗right to undo‘. It would,
in turn, accentuate the process of systemic change at least with two evident advantages. One,
the right to recall would avoid the waiting agony for full five years in getting rid of those who
are found indulging in corrupt and criminal practices by misusing their power and position.
Two, that would make them accountable on continual, day-to-day, basis, leaving little time
and space for them to have recourse to manipulative practices, say, for amassing huge wealth
through corrupt means.
The singular deviating count, requiring immediate attention for establishing constitutionally
consistent continuity, relates to the ambiguity about the intrinsic nature of the citizen‘s right
to vote. In People‘s Union for Civil Liberties-2013, the Supreme Courts reading of the
constitution bench decision in Kuldip Nayar is in consonance so far as it holds that the 5-
judge bench does not ‗impliedly‘ overrule the two three-judge bench decisions of 2002 and
2003. However, an ambiguity creeps in when by virtue of reading the same 5-judge bench
judgment it is stated that ―there is no contradiction as to the fact that right to vote is neither a
fundamental right, nor a Constitutional right, but a pure and simple statutory right which
requires review for the free flow of further constitutional development in exploring the
intrinsic value of the right to vote. It should suffice to say that the propositional statement
within quotes was clearly counteracted by the three-judge bench in People‘s Union for Civil
Liberties-2003 so far as it related to exposition of the citizen‘s right to vote.
In most modern democracies, the right to vote is considered as the most basic fundamental
right. Despite the important value attached to this right, there appears to be a strong prevalent
perception that prisoners forfeit their right to vote by virtue of their incarceration and that the
disenfranchisement of prisoners is indeed a necessary and justified expression of punishment.
This paper looks at the protection of the prisoner‘s democratic right to vote under domestic
and foreign law. It will also examine the question of whether prisoners do or should enjoy
such rights, explore the advantages of upholding such rights as well as any possible
justifications for curtailing them; in particular, whether there is indeed greater justification for
restricting the democratically entrenched right to vote of prisoners on the basis of their status
P a g e | 65
as prisoners. In the final analysis, the paper will argue that there is nothing inherent in the
status of the prisoner or the fact of incarceration to justify their exclusion or interference with
their voting rights that is not related to a legitimate government purpose.
Prisoners are by necessity, a marginalized community, with many restrictions placed upon
their rights. Notwithstanding this reality of life in the penitentiary, constitutional rights by no
means end at the prison gates, and may only be limited in justifiable circumstances. A
prisoner behind bars remain a citizen and is entitled to equal protection and benefit of the law
afforded to all citizens as well as a vindication of his constitutionally entrenched fundamental
rights by the courts-just like any other ordinary citizen living outside the prison walls. The
right to vote is meaningless unless it is accompanied by the opportunity to vote.
The disenfranchisement of prisoners has the chilling effect of silencing a group already on
society‘s margins. Prisoner disenfranchisement may impress upon inmates the stigma of not
being afforded the benefits of full citizenship leading to feelings of alienation. The effect of
not being afforded the benefit of full citizenship through disenfranchisement may have
symbolic significance because prisoners may see themselves as outcasts and see no value in
attempting to assimilate with law-abiding citizens. Quite probably, the restriction of voting
conveys a symbolic message of second-class citizenship and may well operate as a
disincentive to a prisoner‘s positive re-entry into society upon release. Thus the emphasis on
reintegration into society should be a primary consideration when interpreting legislation
dealing with voting. Once we acknowledge the necessity of reintegration, it could go a long
way in encouraging inmates to think of themselves as accepted members of society with
attendant civic responsibilities.
5.2 VOTING HUMAN RIGHTS OF PRISONERS, HE CAN BE M.P. & M.L.A, BUT
CANNOT VOTE;-.
A prisoner may become an M.P or M.L.A but cast his vote. The Constitution of India and the
representation of the Peoples' Act provide basic foundation of the Electoral System in India.
Since, India is a democratic country leasing towards Federalist The office of the Chief
Election Commissioner plays a vital role in the election system of the Nation. It is very
common to say but it is a fact that a person, who is not convicted and who is simply under
trial, simply a prisoner cannot cast his vote from jail or otherwise from a place where he is
detained but he can very well contest election from jail. Is it not a flashy or mockery of law
that who cannot cast his vote but he Can become an M.P. M.L. A. or Minister, tut if he
simply wants to cast his vote during election period, he cannot do so. There are several
instances in our country, where people have contested elections, while in jail, and some of
them have also won and become Hon' ble M.L.a. or M.P. Emphatically speaking it has raised
serious questions on the viability of the existing electoral system. Looking otherwise, it can
very safely be said that those persons who cannot manage to get bail or not able to raise the
amount required or the surety required for getting the bail and thus remained in jail, cannot
exercise their right to a vote. Likewise, those who are in lawful or unlawful custody of the
police cannot also vote. Hence, it can be inferred that the custody of the police for any
P a g e | 66
accused provides immunity to the police for any action but rob the aggrieved from his
valuable right to vote.
Now, the question is that whether a person, who is even convicted or not but who is confined
in jail as a prisoner whether under sentence of imprisonment or otherwise or in police custody
be barred from casting his vote. whether such a restriction would violate his fundamental
rights vested in him under Articles 14, 19 and 21 of the Constitution and whether such a
provision should be declared ultra virus and void to the Constitution. Now, the further
question is that if such persons are supposed to surrender their right to vote as provided u/s
62(5) of the Representation of the Peoples Act, then this principle should be applied to all
kinds of prisoners but it is not so how a person, who is detained in any provision of
Preventive Detention 1aws such as N.S A. are legible for casting their votes.
It is no doubt true that the criminalization of Politics is a matter of hot discussion throughout
the Nation and all attempts are being made to check it and ensure that at least no criminal
should be allowed either to contest election or to cast his vote. Very recently, pushing ahead
with its agenda of keeping criminals out of politics, the Election Commission has suggested
that any person convicted of a crime for more than six months be debarred from contesting
elections for six years.
In a letter to Prime Minister I.K. Gujral, the commission has recommended changes in a
number of clause fine tune the existing Representation of Peoples Act(RPA) to plug the
loopholes that have ambled even history sheeters to contest elections. The letter, sent in mid
September, urges that the amendments to the RPA be pushed through in the winter session of
Parliament. Two months ago the Commission had stirred up a nation-wide debate on the
issue of checking criminal is at ion of Politics by suggesting that those convicted up to six
monthsbe barred from contesting elections even if they had appeals pending in the higher
Courts.
Election Commissioner G V G Krishna a murthy' s revelation in early August that up to 4o

M. Ps in the current Parliament and nearly 700 out of the 4,o72 legislators in State assemblies
have criminal records had raised a storm in political circles. The question that had agitated
the politicians was whether the axe would fall on sitting M.Ps or ML as. Though the
Commission's clarification that the new rules would apply to future elections was some
consolation, that the Election Commission meat business became evident soon after when it
issued a directive that any person convicted by a court under section 8 of the RPA would be
Jabbered from contesting elections. It was the first time in the recent Rajya elections that
nominations forms were required to be accompanied by affidavits declaring that the candidate
did to have a criminal past.
Another long-pending issue is raising the limit of election expenses, fixing a limit of Rs 15
lakh for parliamentary constituencies and Rs 6 lakh for assembly constituencies. Calling for
flexibility in fixing the ceiling for lection expenses, the EC has recommended that the power
P a g e | 67
to suitably amend these limits for smaller or larger constituencies should rest with the
Commission. A significant recommendation relates to the politicians' seeking entry to the
Rajya Sabha by giving false declarations on their address and enrolling themselves in the
electoral rolls of the State. This problem could be eliminated altogether if the laws are
amended to permit anyone to contest RS polls from any parliamentary constituency in the
country so long as he or she is a valid voter.
I would like to mention here also that first of all these general reforms do not have any
legislative support. It is further imports that this general order does not say anything and
rather it is silent on the question on the fate of under trial prisoners. Chief Election
Commissioner should make wide efforts in this regard to abolish this kind of discrimination
and to assure that right to adult franchise should be made avail tie to all concerned.
Constitutional provisions of Articles 14, 19 and 21 of Fundamental Rights elaborate the
position that a person should not be discriminated and he should be assured to exercise all his
rights. Right to Adult franchise has been guaranteed to every citizen of India. When the
Constitution of India has guaranteed to the citizens of India, then how it is possible to put
restriction on this right by any other subordinate authority. Let us examine constitutionality
and legality of this issue now. The Supreme Court has already made its view clear on the
diabolical nexus between Politicians, Bureaucrats, big industrial houses with great Mophias
and under-world dons. The Supreme Court has directed to the Union Government to set up a
body of eminent personalities and jurists, having crystal clear and uptight reputation to look
into this nexus. It is highly unfortunate that very little progress has been made in this
direction so far.
The Supreme Court has described criminal alisation of Politics as the bone of Society and
negation of democracy. Recently, the present Hon'ble Chiefs Justice of India. Sri J.S.Verma
has said that "criminalization of Politics is subversive of free and fair elections which is a
basic feature of the u Constitution. The Supreme Court noted the important of free and fair
election and right to adult franchise but I am afraid to say that some-times the Court
undermine the significance of free and fair elections, while it dismissed a petition, which had
challenged section 62(5) of the Representation of the People's Act. In this writ petition, it was
challenged that section 62(5) is volatile and ultra virus to the Constitution and it was urged to
the Court that Right to vote should be expended to all under trial prisoners also but the Court
dismissed this plea and held that the expression "or otherwise" has very wide connotations. It
denies voting right to the under trials and other persons detained in prison for any reason
including an inability to furnish bail. This restriction applies even to those persons who are in
the custody of the police lawfully or unlawfully. It will include a person detained during
investigation or in police custody through the order of the Court before a charge-sheet has
been filed against him.
But a person even convicted or sentenced or under trial who is released on bail is permitted
right to vote. The Court held that it shall not be discrimination. With due regards and
apologies, I do not share this view when right to adult franchise has been guaranteed to all
P a g e | 68
then certainly each and every person (citizen) who has right to vote should tender it and there
should not be an unreasonable legal bar prohibiting the use of this right. Further, it is also to
be noted that there should not be any discrimination at least within a group. If a person, who
is under trial but under preventive detention, why he should be permitted to vote. I think if he
has been permitted them other under trials, should also be permitted otherwise it shall be
clear cut violation of articles 14, 19 and 21 of the Constitution. At least, it is a denial of the
human right also. Now-a-days, human movement is getting momentum. We have to preserve
human rights at all costs. Right to vote is very valuating human right. It is the basic
foundation not only of the democracy but also of the present legal system. a person, who is
under, trial, may be found innocent, then what shall happen. Is there any provision for
compensation to be paid from stopping him to tender his vote? Whether the under trial, who
is deprived from his right to vote can be compensated easily either way. If it is found that he
was quite innocent and he remained in jail without spy reasonable and probable cause.
Fortunately, the Supreme Court has armed all the Lower Courts as well itself with the a
power that if a person, who is deprived of his liberty without any reason able and probable
cause, then the Court compensate him in terms of money for his grievances. I think this
facility should be extended to those under trials, who have been deprived of this right. All
Indian citizens, unless he is a convict or an insolvent or otherwise disqualified for his right to
vote or this right is taken away expressly under any law for the time being in force, should be
permitted to cast their vote during election process as a goodwill gesture for the human rights.
The Apex Court has tried to distinguish between under trial prisoners under ordinary criminal
1aws with their counter - parts detained under preventive laws. It has been said that
preventive detention such as N.S. A. is meant to prevent any breach of law, while persons in
jail after conviction or during investigation and trial subsequent to the commission of crimes
is on different footing. I think this distinction is itself not sufficient.
The proceedings of the Preventive Detention laws are taken against those offenders or
criminals, who are beyond the reach of ordinary criminal laws or against those, who are
highly criminals or mischief mongers but they had made their escape good from the Courts
on legal technicalities and they are counter-form of terror in the Society. The Supreme Court
in the case of Sangram Singh versus Union of India held that right to vote was a statutory
right and it is not a common law right. The right to vote or to stand as a candidate for election
is not a right but is a creature of statute or special law and must be subject to the limitation
imposed by it. The Court kept in view the representation of the Peoples' Act and various other
election laws prevalent in this country.
I think that it is the universal truth that in all democratic countries right to adult franchise has
been assured fundamentally although it may not be very ancient right but it can very safely be
said to be a very fundamental right for the foundation of Society now a days. The present day
legal position is that a prisoner cannot vote but he can be a MLA, MP or minister. This legal
position should be changed and party should be maintained. All under trial prisoners should
be permitted to vote irrespective of his crime unless and until he is specifically barred or
disqualified from tendering vote. Looking into the human rights movement & Article 14, 19,
P a g e | 69
and 21 of the Constitution this restriction upon right to vote of prisoners should be removed
by the Government itself and if this restriction is not removed by the Government, then our
Courts specifically the Apex Court should not hesitate in declaring these provisions null, void
and ultra virus to the Constitution. The Court should also show its regard and respect to the
human rights as shown by it in the past so that right to adult franchise can be utilized by all
citizens of India; whether they are in jail or not but at least they are the Hon'ble members and
citizens of India.

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Page |1

John Stuart Mill, Considerations on Representative Government

―In my country we go to prison first and then become President.‖2

Nelson Mandela, Long Walk to Freedom

1.1 DEMOCRATIC VALUES IN DEMOCRACY

When India got independence in 1947, it was to function as an Independent Democratic

United States of America (USA)

1.2 IMPORTANCE OF RIGHT TO VOTE

Voting as a responsibility: Voting is as much a responsibility as it is a right. The whole

Right to vote is important because:

5. Right to vote encourages civic consciousness because it encourages political participation,

It is the hallmark of democracy, equality and representation.

1.3 PRISONER’S RIGHT TO VOTE IN INDIA AND ABROAD

It is pertinent that the validity of such restrictions be examined. The constitutionality of

 Whether Prisoners deserve the right to vote in a democratic country.

RIGHT TO VOTE IN DEMOCRACY

2.1 HUMAN RIGHT TO VOTE UNDER INDIAN LAW AND ABROAD

The Constitution identifies disqualification only on grounds of non-residence, unsoundness

(a) Conviction, acquittal, discharge of any offence, punishment

2.2 RIGHT TO VOTE V/S RIGHT NOT TO VOTE

Mentioned in the Fourteenth Amendment, Fifteenth, Nineteenth, Twenty-Fourth and Twenty-

CONDITION OF RIGHT TO VOTE OF PRISONERS IN INDIA

3.1 PRISONERS’ RIGHTS IN INDIA

The Committee has recommended that scientific classification of prisoners and

government suggesting enhancement of punishment for those prisoners who violates

3.2 PRISONER’S RIGHTS UNDER THE CONSTITUTION OF INDIA

 Right of inmates of protective homes57

 Right to meet friends and consult lawyer,

3.3 PRISONER’S RIGHTS UNDER THE PRISONS ACT, 1894

 Accommodation and sanitary conditions for prisoners,

Overall, the Supreme Court‘s judgment is based on a skewed understanding of democracy.

3.4 BAN ON RIGHT TO VOTE OF PRISONERS: AN ANALYSIS

Moreover, this concept of adult franchise is enumerated in Article 326 of Constitution of

3.5 EMPIRICAL METHOD

RIGHT OF PRISONERS TO VOTE: A GLOBAL OVERVIEW

4.1 INTERNATIONAL PERSPECTIVE

This aims to provide a brief overview of the extent of (dis)enfranchisement of detained

UNITED STATES OF AMERICA

4.2 INTERNATIONAL INSTRUMENTS

Academic debate has tended to favour prisoner enfranchisement, on multiple grounds. In

Article 25 of the ICCPR states:

Article 10(3) of the ICCPR provides:

4.3 LEGAL FRAMEWORK

Since 2009, conviction to imprisonment in Belgium does not automatically lead to

In the vast majority of jurisdictions surveyed, offenders serving non-custodial criminal

Exercising the right to vote

Reinstating voting rights post‐release

Voting rights US States91

The Government’s justification for the ban

The undeservingness of prisoners

4.4 INTERNATIONAL DECISIONS ON PRISONERS’ RIGHT TO VOTE: A

4.5 EUROPEAN COURT OF HUMAN RIGHTS

In 1983 Parliament re-enacted a blanket ban on prisoners serving a term of imprisonment

4.6 CASES CONCERNING THE UNITED KINGDOM

Disenfranchisement can be viewed as counter-productive to the purpose of imprisonment and

5.1 CITIZEN RIGHT TO VOTE

Election Commissioner G V G Krishna a murthy' s revelation in early August that up to 4o

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