This post seeks to present to the readers, a timeline of cases following the landmark judgment passed by the Apex court in the case of Anukul Chandra Pradhan on the issue of voting rights of undertrial prisoners.
The constitutionality of section 62(5) of the RP Act was initially challenged in the case of Anukul Chandra Pradhan v. Union of India ((1997) 6 SCC 1) as being violative of the right to equality under article 14 and the right to life under article 21. The judgment was unanimous and the bench was presided over by Justice J.S. Verma.
The reasoning given was that, article 14 of the constitution permits reasonable classifications and differential treatment according to the rule that same must be treated alike. There must be a rational connection to the objective being sought.
The Court’s view was that the provision was reasonable because it was being done to prevent criminalisation of politics and “maintain probity in elections and that any provision which furthers that aim and promotes the object has to be welcomed as sub-serving a great constitutional purpose”.
Further, the court also went on to cite practical considerations and ruled that additional resources would be required in the form of infrastructure, security and deployment of extra police forces. The court stated that the prisoner was in prison owing to his own conduct and therefore, the deprivation of his liberty during the period of his imprisonment cannot qualify as violation of his freedom of movement, speech and expression when compared to others who are not in prison.
Interestingly, in 2007, Mohd. Shahabuddin, Shibu Soren and Pappu Yadav (voters serving prison sentences or being behind bars as undertrials) also cast their votes in the presidential election, being allowed to do the same by the Supreme Court and High Courts. The logic given by Chief Justice K.G. Balakrishnan was that an incarcerated MP or MLA could not be equated with an ordinary citizen who is barred under section 62(5) of the RP Act. The Bench reasoned that MPs and MLAs are but people’s representatives and disenfranchising them would be tantamount to disenfranchising entire populations within constituencies. The Bench for this purpose had taken cue from an earlier judgment in 1983 where a petition was filed by a Mahendra Kumar Shastri before the apex court.
The court there had decided in favour of retaining the provision since the provision was in public interest and was enacted for the purposes of “maintaining purity in electing people’s representatives and there is no discrimination or arbitrariness involved”.
This reasoning was reiterated in the year 1999 by a 3-judge bench of the Supreme Court in the case of S. Radhakrishnan v. Union of India. However, the provision could not prevent those under preventive custody from casting their vote.
In the 2013 judgment of Chief Election Commissioner v. Jan Chaukidar (Justice A.K. Patnaik and Justice S.J. Mukhopadhyay) the apex court went on to rule that since one of the conditions to be a candidate under the RP Act, 1951, is that the candidate should be eligible to vote, even those in lawful custody cannot contest elections.
It is an established law in India that individuals in lawful custody of the police, undertrials and those serving prison sentences after conviction cannot vote.
Reasoning provided is that the right to vote in India is not a constitutional or fundamental right, but merely, a statutory right. Hence, the legislature can decide the terms on which the right to vote will be enjoyed subject to Articles 325 and 326. Article 326 of the Constitution permits the disqualification of a voter on under the constitution or under law on grounds of “non-residence, unsoundness of mind, crime or corrupt or illegal practice”.
Accordingly, section 62(5) of the RP Act which explicitly lays down that a person is not eligible to vote if “he is confined in the prison, whether under a sentence of imprisonment or transportation or otherwise or is in the lawful custody of the police”. Additionally, the Reference Book on the General Elections (Chapter 43) states that undertrial prisoners are not eligible to vote even if their names are on the electoral rolls. This disqualification however does not extend to those who are out on bail while awaiting trial.
To subvert the implications of this judgment, the Parliament came out with an amendment to the RP Act in September 2013 which restored the right for those in jail to contest even under conditions of detention. This amendment essentially then restored only the right to contest elections but not the right to vote for undertrials.
In the case of Manohar Lal Sharma v. Union of India, the petitioner filed a writ petition challenging the constitutional validity of the Representation of the People (Amendment and Validation) Act, 2013, as being ultra vires the Constitution of India vitiated by mala fides and against the general public interest. The petitioner stated that the sole motive was to protect the vested interests of the political leaders’ interests. The Court reasoned that once it is seen that it is competent for the legislature to enact a law, the motive need not be taken into consideration. The amendment had in fact gone on to broaden the very definition of ‘elector’ to cure the defects in the apex court’s previous declaratory judgment. Since the right to vote is a creature of statute, it can only be exercised subject to conditions laid down under the statute itself. The Court’s view was that “the petitioner’s plea to bar any person who is in jail or in police custody from contesting an election on the ground that it would lead to criminalisation of politics is a case of the remedy being worse than the disease. Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of ‘vendetta politics’ by ruling parties. All that a politician/ ruling party-in-power would need to do to prevent rivals from contesting an election, is to ask the police to file a case and to arrest the rivals”. The court also went on to cite Rule 84(2) of the United Nations Standard Minimum Rules for Treatment of Prisoners which mandates that prisoners who have not been convicted should be presumed as innocent and treated as such.
Even NRIs were given the facility of e-ballot voting through the case of Nagender Chindam v. Union of India in 2015.
In April 2016, the Election Commission of India (ECI) had set up a 7 member committee to explore the possibility of lifting the ban on voting for prisoners. The same is currently being headed by Deputy Election Commissioner, Sandeep Saxena.