Undertrial Prisoners’ right to

vote: overlooked and

corrupted.

This year India, the largest democracy in the world celebrated

its 75th Independence Day obtained from the British Empire as
a fruit of the long battle fought by our freedom fighters. The
conclusion of the long-served slavery in 1947 now embarks the
entry of new challenges faced by the nation. The right to
equality, right to life and vote guaranteed under Art.14, Art 21
and Art. 326 respectively enshrined in the Constitution of India
is one such challenge that has failed to magnify its importance
on various occasions.

Sec 62(5) of the Representation of the People Act, 1951, prevents

an individual to vote at any election if he or she is confined in
any prison, irrespective of being served under a sentence or
transported or otherwise in the lawful custody of the police. The
abovementioned provision has been iterated by the courts of
India. The Supreme Court in the case of Anukul Chandra
Pradhan, Advocate Supreme Court v/s Union of India
& Ors. held that sec 62(5) of the Representation of the People
Act, 1951 does not violate rights guaranteed under Art. 14 and
21 of the Constitution as the legislature has discretionary
power to exclude persons from exercising their right to vote.

According to 2019 statistics, the percentage of undertrial

prisoners amounts to 70% of the total prison population, which
is more than the average of 66.97% over the past years. The
increase in the number of undertrial prisoners shows the
seriousness of the situation where the people are deprived of
their right to vote. The said statute contravenes the criminal
law's basic tenets, which is “a person is innocent until proven
guilty”. Hence, the cessation of the statutory right to vote of an
undertrial prisoner is against the basic principle of natural
justice and a constitutional crisis faced by our legal system.

The provisions of sec 62(5) of the Representation of People Act,

1951 have been misty and discombobulate since the
beginning. The Act explicitly prohibits an undertrial
prisoner from exercising their statutory right to vote
(Art. 326) but remains silent on the casting of vote by
an accused released on bail under any offence or
contesting in an election. Thus, the two loopholes act
as blessings under disguise for people released on bail
to contest polls and cast votes at discretion. For instance,
a peon under trial prisoner for the offence of theft loses his job
and right to vote, while a person released on bail under the
offence of rape, murder, dacoity, etc. contests the polls and even
exercises his right to vote.

Acknowledging the same, the Supreme Court in 2014 while

exercising its power granted under Art. 129 and 142 of the
Constitution mandated the disclosure of criminal cases and held
that “the parties must submit the details within 72 hours. If the
political parties failed to give the details, or the Election
Commission was unable to implement the directive, it would be
considered contempt of court. Also, the reason to select the
candidates should be based on merit and not winnability”.

The said decision of the apex court was recently iterated in the
case of contempt petition between Brajesh Singh v/s Sunil
Arora & Ors., where the court imposed the fine of Rs. 5 lakhs
on CPI(M) & NCP and Rs. 1 lakh on BJP, INC, Janta Dal, RJD,
CPI & LJP for failure to comply with the directions to disclose
pending criminal proceedings of candidates contesting Bihar
polls 2020.
Apart from shortcomings in the Indian legislature concerning
the rights of the undertrial prisoners, the pendency before the
courts also plays an important role. Currently, there are 5.75
million pending cases in the High Courts across India, while a
total of 38.15 million cases are in the District Courts.

Although, the Hon’ble courts across India have recognized the

importance of disclosure of criminal records by the candidates
contesting polls, yet they have failed to bring the undertrial
prisoners under the umbrella of justice. Thus, we can only
appeal to the legislature.

To conclude, ensuring the enforcement and dignity of the right

to equality and the right to life, following measures should be
adopted:

1. Like Europe, Switzerland, Finland, Norway, Denmark,

Ireland, the Baltic States, and Spain, the right to vote can be
given.

2. Like Romania, Iceland, the Netherlands, Slovakia,

Luxembourg, Cyprus and Germany right to vote can be given
subject to certain permits and conditions such as the quantum
of sentence served.

3. Speedy trials for the undertrial prisoners.

4. Restrictions on the candidates contesting polls and

undergoing criminal prosecution.
5. Recruitment of more judicial officials in proportion to the
total population of the country i.e., maintaining judge
population ratio. At present, the judge population ratio in India
stands at 21.03 judges per million people, which is far behind
especially for a country like India with a population of 1.3 billion
people.

(Views expressed in Citizen Junction columns are that of the author and solely of the
author. Jaano Junction only provides the platform to publish your thoughts, opinions
and concerns).