Disenfranchisement Of Prisoners Justified Or Not

“Voting is the most precious right of every citizen, and we have a moral obligation to ensure the integrity of our voting process.” -Hilary Clinton

India in its own glory and diversity is the biggest democratic nation that stands and believes in providing each and every citizen the rights and freedoms to the fullest. Despite being the biggest democracy, the nation still holds back to provide certain rights to a small but a notable portion of the population, which does not fall in category of equals with the rest of the citizens due to the offences that they have committed- the Prisoners. They are confined to the prisons where they are entitled to their fundamental and human rights but we are still lacking in providing them their mere statutory right, one of them being the Right to Vote. Explaining in its true sense the denial of any right or privilege especially the Right to Vote is known as Disenfranchisement.Amidst the big show of the country of voting where 1.3 Billion people are supposed to vote then why is the nation still lacking in providing this right to the 4, 00,000 prisoners housed across Indian jails? [1]

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Prisoners though are not denied their civil rights but in this democratic country of ours they are still considered as inferiors when compared to the rest. Thereby when providing any Right to the citizens, it is always questioned whether the Right is a Fundamental Right or a Statutory Right. In case of right to vote it was metamorphosed from the case of PUCL & ORS. V. UNION OF INDIA [[1]], that Right to Vote is a Statutory Right and not a Fundamental Right or Constitutional Right. A Statutory Right is a right granted under a statute that is given to all the citizens and can also be amended if required which means if ‘ the law gives it, and the law can take it away.’Therefore, amendment of Right to Vote in favor of prisoners will be helpful as it will give a chance, not to all but to those prisoners who are categorized under the category where the offence was committed due to the spur of the moment and not voluntarily, to stand as equals in spite of them committing an offence and it will also act as a way of reformation to the prisoners, signifying- a progression in law and a perpetual shift compelling the present to have a penetrating look to the past. It was observed by Hon’ble Chief Justice Dipak Misra in the case of‘JOSEPH SHINE V. UNION OF INDIA’ [[2]], where he also added that the binding nature of the precedent should not be allowed to retain its status or allowed to be diluted. Through these statements it is signified that the precedent laws should not compel anyone from making a new law, which aims at the welfare of the society as a whole.

The society consists of a varied category of people, which also includes the people who have committed certain offences as to create distress to the society. So who exactly are these people is matter of fact because people who commit an offence are further classified into small heads one of which is the prisoners who are confined in jails. The concept of prisoners is considered to be a very vast concept and usually the prisoners are considered to be the people who are confined in the jails, partly this statement lies correct in its sense but the term ‘prisoners’ if noted by it’s proper meaning covers all those people who are either convicts or are under trials and those in custody and are governed by the Jail Authorities. According to Article 22 of the Indian Constitution a convict or under trials fall under the purview of the Indian Prisons Act 1894 as well as the Preventive Detention Act 1950 but in the case of PUCL & ORS. V.UNION OF INDIA[3]] the distinction was made between those take into custody and those out on bail or in preventive detention. Though denial of rights is only applied to the incarcerated or the ones out on bail but not the persons detained under Preventive Detention. Amongst the category of prisoners there are some who have committed some heinous crimes and some who have been confined due to their unconscious behavior or mentality which had lead them to commit a crime. This category of prisoners who haven’t committed a heinous crime are taken into question as to the providing of rights with an aim for their reformation because the statement in its true that a person is not born as a criminal applies only to that category of prisoners who are ready for their reformation.

According to the Reformative theory that is laid down, it says that every man is born good but circumstances transform him into a criminal. The saying that “every saint has a past and every sinner has a future” explains the basis of the theory of the Reformative Theory. The theory emphasizes on teaching the criminals not to commit the crime again and reform should be the main reason for the said punishment. Through the punishment the criminal should get a chance to reform himself into a better human being and also reflect back on the negative doings of his. Providing or rather amending certain laws such as the felony disenfranchisement is one through which the prisoners can also reform themselves by understanding that by getting their Rights even after being confined it will lead to creating a sense of trust and belongingness between the prisoners and the State leading them to a better reformation. As this theory pre-supposes mainly over the socio-economic conditions therefore providing the prisoners with their Statutory Rights is considered to be a way of reformation. This theory is applied to only prisoners who are willing to reform themselves but not the prisoners who are rigid towards their reformation like the habitual criminals who tend to end up in the prisons due to their crime committing mentality. But instead the application of this theory in quashing of the felony disenfranchisement is that it will give the prisoners a right to cast and participate in election process of Democracy Republic India and jail premises itself resulting that the participation of the prisoners in the voting process will not be the cause of increase in criminalization of politics and thereby will be one of the highlighted right of our Constitution.

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Being a developing nation, India believes the reformation of the criminals, but in this long process of only development the nation needs to take concrete steps in order to become a developed nation. Just like the other foreign countries who have also adopted the theory of providing their prisoner the right to vote and are succeeding in removing felony disenfranchisement for the prisoners and also have brought about amendments in their statutes just like Australia who have amended the Electoral and Referendum Amendment Act 2004, Ireland who amended the Electoral Amendment Act 2006 and South Africa made an amendment in their Electoral Laws Amendment Act 2003, all these countries have successfully amended their laws in favor of the prisoners for providing them their Right to Vote. A remarkable case in country of Canada where the Canadian Supreme Court struck down the provisions on the grounds that the Right to Vote was Fundamental to democracy and the rule of law. Even South Africa amended their laws on the grounds that the convicted prisoners were deprived of their right to participate in elections; it was declared by the Constitutional Court that it would be invalid and inconsistent with the constitution, which leads them to amend their laws in favor of the prisoners. As can be inferred from these cases, India in its broadest view of development should also follow this path making the prisoners avail their rights thus abolishing the Felony disenfranchisement[4].

It is rather ironic to the above sentences that the prisoners who are confined are denied their rights but corollary to these are those people who are allowed to contest elections and become candidates even after a criminal background.  The Indian Constitution lays down in Article 326 lays no grounds as to any restriction on a person for contesting election even after having a criminal background. It is deemed that the prisoners fall under as the second-class citizens but the persons contesting are considered to be superior to them even though they stand corollary to the criminals on some grounds. The citizens are expected to cast their votes under the concept of Universal Adult Suffrage where democracy takes it under the basic structure of the constitution. Thereby exercising the concept of Universal Adult Suffrage will only be true if the vote is going to be useful and when it is not applied to a person who stands on the same level as a criminal. In recent times we have good number of examples where the political parties themselves have backed candidates who have criminal credentials to their credit. Some contest it from the prison itself and some who are out on bail are authenticated to be people’s representatives. We are amazed at the double standards adopted on this count. Thus, suffering this problem, the prisoners are still denied their rights on the same grounds when the candidates who are out on bail are allowed to exercise the same rights.


This dilemma has not risen in the recent times but traces back to the year 2010 where the right to voting for prisoners was first challenged by West Bengal Government in favor of providing prisoners their right to vote. The state of Bihar had also made efforts to provide the voting right to the under trials. Though there are many judgments relating to the human rights as well as the basic rights for prisoners, our country still needs to reconsider the blanket ban on prisoner’s suffrage and also should make efforts to increase participation of the prisoners for casting their vote. Recently, based on this topic there was a petition that was filed in the Delhi High Court by three law students from the state of Uttar Pradesh, challenging the constitutional validity of Section 62(5) of the Representation of the People Act 1951 (ROPA) which lays that neither convicts nor under trials should be granted the right to vote, “if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise or is in lawful custody of the police”.[5] The above section 62(5) of the ROPA therefore confines all those who are confined or are in lawful custody of the police from voting. The petition was filed under Art 226 of the Constitution of India, which ensures political justice and equality to the citizens and also ensures the fundamental rights under Article 14, 19 (1) (a) and 21 of the Constitution of India. Having no personal interest in the petition it wholly seeks that all the prisoners should be entitled with their right to vote. There are certain grounds on which the petition is filed which mainly includes

  • The Section 62(5) of the Representation of the People Act, 1951 which violates the concept of equality, expression, creating a breach in the basic structure of the Constitution.
  • It also states that Articles 14, 19 (1) (a) and 21 of our Constitution are being infringed while denial of voting rights to the prisoners.
  • The Section of the ROPA violated the fundamental right of equality by depriving them to cast their vote on unreasonable ground. The concept of equality is a necessary corollary of Rule of Law. Therefore the above section opposes the concept of equality envisaged under Article 14 of our Constitution.
  • The petition by stating the case of JYOTI BASU V. DEBI GHOSAL (1982) 1 SCC 691, observed that freedom of voting is just a species of freedom of speech and expression, which held that:” initially right to vote cannot be placed on the pedestal of a fundamental right but at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favor of one or the other candidate tantamount to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of the expression of the voter. That is where Article 19 (1) (a) is attracted.”
  • Considering another case of PEOPLE’S UNION FOR CIVIL LIBERTIES AND ORS. V. UNION OF INDIA for Article 19 (1) (a) which states that: “it is further submitted that denying the right to vote to prisoners is against the precedents set up by this Hon’ble Court and this level of violation of fundamental right makes the impugned Section 62(5) as arbitrary and unconstitutional.
  • Regarding the Article 21 the Hon’ble Court in 9 judges in Justice KS PUTTASWAMY V. UNION OF INDIA (2017) 10 SCC 1, has inter alia has held that right to life under Article 21 of Constitution of India includes right to live with dignity which cannot be restricted to mere animal existence. It means something much more than just physical survival. Therefore the prisoner has all the fundamental rights and other legal rights available to a free person, save those, which are incapable of enjoyment by reason of incarceration. A prisoner is not stripped of his fundamental or other legal rights.
  • It is further submitted that first proviso of Section 62(5) provides voting rights to person detained under any preventive detention law for the time being in force but sub section (5) of Section 62 denies a person under prison to cast their vote. Thus attracting the violation of the basic feature of equality under Article 14 of our Constitution. Also, the terms ‘or otherwise’ that are given in sub section (5) of Section 62 denies voting right even to under trials and other persons detained in prisons for any reason, including the reason of inability to furnish bail. On the other hand, a person convicted and sentenced to imprisonment but released on bail is permitted to vote. This is just another ground, which is arbitrary and unreasonable thus violating Article 14 of the Constitution.

Therefore, based on these grounds was the recent petition filed in which it prayed that the blanket ban on the right to vote should be removed and the prisoners shall be provided with the right to vote. Focusing on the above stated grounds it can be inferred that prisoners right to vote can be a way of major rehabilitation and will be a step towards easy integration of the prisoners into the society after serving time.

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Being a citizen of the country, the prisoners should be able to vote as they have an equal right of choosing their representative. Also being behind the bars and having a sense of loss of freedom, providing them their right to vote will be way of giving them back their freedom that they have lost, because a prisoner who is reformed shall have the right to choose his representative when he reenters into the society. Denial of voting rights to prisoners is considered on the idea that the prisoners undergo a sort of temporary civic death where it is suspension of normal rights as citizens while they are serving their punishment. Even today people believe the providing rights to prisoners is wrong because a prisoner is in the prison for the crime that he has committed and is meant to serve a punishment but being in the prison is not only the deprivation liberty and the loss of control over daily interaction. One can be punished without being subjected to civic exile. When the prisoners are released they are given their right to vote but looking at the post- release enfranchisement, a smarter way should be adopted about providing prisoners their political rights even after being behind bars.As indicated by the restriction on this right, the government must demonstrate that enabling prisoners to practice this privilege infringes the privileges of others. Giving prisoners the right to vote would help their recovery, which is fundamental on the off chance that they are to abstain from reoffending in the wake of being discharged. Denying prisoners the right to vote infers that they are lesser natives harming their nobility and feeling of self-esteem, undermining endeavors to enable them to control their conduct. Casting a vote urges prisoners to check out current undertakings, which will help their reintegration into society. A guilty party once punished under the law ought not to acquire the extra punishment of loss of the establishment. The standard point of the cutting edge criminal law is to restore guilty parties and situate them decidedly toward the general public, which they will reemerge on their discharge. It is reasonable that this procedure is helped by an approach of urging wrongdoers to watch their common and political commitments.

“A democracy is premised on the notion that the voters select the politicians, not the politicians who select the voters.” As stated above that India is the largest democracy in the world but the question still arises that does this nation deserve to hold this title in its obvious sense? The Constitution of India confronted rise of an absolutely new idea of “fundamental structure”. The idea included legitimate segments like fundamental rights, government structure and so forth, which can’t be revised against the soul of Constitution. This extraordinary idea incorporates the free and reasonable races additionally, thus including the privilege of interest in decisions. So even this privilege will be viewed as the basic structure of the Constitution of India, most sacred document ever made in Indian nation. But simply this Act removed this Right from couple of residents of India making then lesser natives than others. This moves toward becoming against the soul of Constitution as well as against Democracy. This demonstrates India is a state which discusses giving a wide range of fundamental and human rights to not just prisoners not additionally to the individuals who are simply claimed of an offense, yet at the same time has never pondered giving this privilege to them.

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Casting a vote, as different rights, isn’t a benefit which government grants to residents. It is something that residents contend and concur as major to a fundamental to democratic system and must be put generously past the span of politicians to adjust. At long last, voting is a demonstration that underlines the value of order and rule of law. By enabling prisoners to practice their entitlement to cast a vote, they are permitted to impact law and arrangement making in a productive way. Simply enabling inmates to vote incorporates them in mindful law-production forms instead of abandoning them having no stake in it along these lines broadening the distance from society that the wrongdoer may as of now feel. In the entire article while examining about the voting rights of prisoners it is effectively inferable that preventing an individual from his entitlement to cast a vote in democracy prompts ‘civic death’. This idea of confinement on voting rights of prisoners appeared as they are considered to damage the human and essential privileges of others. In any case, have any one at any point believed that this confinement in India is substantial notwithstanding for under trials. Out of the complete population of 2.26 lacs of prisoners in the nation, 1.63 lacs were under trials. Thus 72% of the prison population isn’t sentenced for any wrongdoing [[6]]. Also, even the individuals who are convicts, an expansive number of them are first time guilty parties engaged with minor infringement of law. Not many are recidivists or hardened criminals. In a general public like our own, a label like prisoner appended with an individual in it is one of the greatest marks of disgrace of all. Thus, for it ought not to be gone with the common passing of an individual. The reformatory laws have effectively indicated disciplines for a wide range of offenses, which ought not to be expanded by adding this confinement to it. Imprisonment must remain as a means to an end and not an end in itself. The words justice, equity, liberty, brotherhood and dignity as highlighted in the Preamble can be achieved through a way broadly known as Adult Franchisement. Thereby being able to vote is a part of one’s identity as an equal citizen. The students’ petitioners who have filed the recent petition rightly equate the right to vote with the freedom of expression, which is “the live wire of democracy.”

In the words of Sir Winston Churchill’s: “ At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper- no amount of rhetoric or voluminous discussion can possibly diminish the over whelming importance of the point.”

This means that being a citizen of this country, every person should be entitled to the right to vote and no citizen shall be over burdened with the pressure of whom to elect as their representative. Right to vote- is entitled to all citizensand by citizens we also include the prisoners. In a country like India where democracy prevails and each and every vote counts to frame the new Legislative body who will work towards the welfare of the country, people are still reluctant in casting their votes or some are denied this right. Even today there are people who even after getting the right of casting their vote prefer not to cast it or some prefer to press the NOTA button and waste their precious vote. The nation still provides voting rights to such people who are ready to waste their vote but the people who want to vote like the prisoners are still denied of this right. So by making such a distinction between citizens of the country in providing of their mere statutory rights, is the country still justifying the democracy?

[1](2013) 10 SCC 1

[2] . Joseph Shine v. Union of India, (2019) 3 SCC 39, 27-09-2018

[3](2013) 10 SCC 1

[4]Felony disenfranchisement is the exclusion from voting of people otherwise eligible to vote (known as disfranchisement) due to conviction of a criminal offense, usually restricted to the more serious class of crimes: felonies in the US; Wikipedia.



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