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A PIL filed in February by law school students challenges the constitutionality of Section 62 (5). ( Praful Gangurde/Hindustan Times)
A PIL filed in February by law school students challenges the constitutionality of Section 62 (5). ( Praful Gangurde/Hindustan Times)

Indian Elections: Should prisoners get voting rights?

  • Three law school students are challenging the law that forbids prison inmates from voting
  • In the petition, they have suggested setting up of electronic voting machines in the prison itself

Earlier this year, a class on election law came as an eye-opener for Praveen Kumar Chaudhary. That’s when he realized that prisoners in India have no voting rights. “There are more than 400,000 prisoners in the country (419,623, including pre-trial and remand prisoners, according to the National Crime Records Bureau, on 31 December 2015). While the rest of the country is currently voting in the 2019 Lok Sabha election, these 400,000 people have no right to choose their representative," says the 21-year-old, a fourth-year law student at Galgotias University in Greater Noida, Uttar Pradesh.

Not content with merely debating this rule in class, Chaudhary and two of his classmates, Prerna Singh and Atul Kumar Dubey, decided to follow up the matter. In February, they filed a public interest litigation (PIL) in the Delhi high court, challenging the constitutionality of Section 62 (5) of the Representation of People Act (RPA), which states: “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment…or is in the lawful custody of the police." The only exception to this rule is a “person subjected to preventive detention under any law for the time being in force".

The three students analysed the section and concluded that such a blanket ban on prisoners’ right to vote was not just a violation of the spirit and soul of the Constitution, but also of the basic principle of equality. “Our first hearing was on 8 March and the Delhi high court asked the Election Commission of India and Tihar jail to respond to the petition. However, there has been no response from them so far," says Singh, who is busy preparing for the next hearing, scheduled on 9 May.

This is not the first time that the constitutional validity of Section 62 (5) has been challenged. In 1997, as part of the case Anukul Chandra Pradhan v. Union Of India And Others, the petitioner too argued that the sub-section violated Article 14 (equality before law) of the Constitution, and also of Article 21, as the “restriction placed on the right to vote denied dignity of life". In 2016, there seemed to be a glimmer of hope, when the Election Commission (EC) set up a seven-member committee, headed by deputy election commissioner Sandeep Saxena, to examine this issue. The students have filed an RTI to understand the findings of this committee.

Petitions such as this one are being followed closely by constitutional law experts and prison reform groups. For instance, Ajay Verma, a Delhi-based lawyer and convener, National Forum for Prison Reform, believes Indian prisons, with their centres for vocational training and education, are supposed to be places of transformation. “There, people are allowed to reform. Then why should they not vote?" he says.

However, the subject continues to elicit a mixed response. According to former chief election commissioner T.S. Krishnamurthy: “One view is that if people with a criminal record can contest elections, then why can’t prisoners vote? It might be better to have a uniform policy towards both." According to Gautam Bhatia, a Delhi-based lawyer and author of The Transformative Constitution: A Radical Biography In Nine Acts, the courts have declared voting (overall) to be protected under freedom of expression—Article 19 (1) (a)—as well as a constitutional right. “But unfortunately, a lot of confusion remains over its status, as it is not specifically guaranteed as a fundamental right," he says.

Logistical and administrative challenges are some of the hurdles that have often been cited in the past. According to Verma, a hiccup could occur if, say, a person from another state is lodged in a Delhi prison. “In such a case, would postal ballot be allowed? What would the procedure be? But it is not difficult to address these issues," he says. In their petition, the students have tried to address some of these hurdles as well, by suggesting electronic voting machines be installed in prisons.

Meanwhile, the three students continue to fund the campaign through their savings. “My father always encouraged me and said, ‘kuch accha karo (do good)’. This is just the beginning. We are also going to look into ways of providing basic privacy to women prisoners through better washrooms, and more," says Singh.

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