The Right to vote is a constitutional right of every citizen of India under Article 326 of the Indian Constitution. Voting Rights are fundamental to a functioning democracy. There are many sections of Indian society which are deprived of their fundamental right. Prisoners in India are not given the right to vote, only the prisoners who are out on bail are allowed to cast their vote. The other categories of prisoners which consist of detainees and convicts have been denied their right to franchise based on Section 62(5) of the Representation of the People Act, 1951.

India's Undertrial Prison Crisis

The latest National Crime Reports Bureau (NCRB) report of 2022 shows a total of 5,73,220 prisoners were confined as on 31st December 2022 in various jails across the country. The number of convicts, undertrial inmates and detenues were reported as 1,33,415, 4,34,302, and 4,324, respectively who are deprived of their constitutional right to vote.

Undertrial inmates make up between 60 and 70 percent of all prisoners, according to NCRB data. This raises concerns about prisoners' rights and whether it is justifiable to hold them for extended periods of time even in cases where there is no conviction. A significant portion of the population is not incarcerated because they have not yet been found guilty; rather, they are awaiting the outcome of the legal proceedings. The NCRB report indicates that prisoners are not entitled to engage in democratic processes.

Current Status On Voting Rights Of Prisoners In India

The Section 62 (5) of the Representation of People Act, 1951 does not allow the Right to Vote for the convicts which is in contradiction with the political rights provided under Section 8(3) of the Representation of People Act, 1951. Section 8(3) has granted to a convict of an offence punishable with less than two years of imprisonment the right to contest in an election. Thus, resolving this conflict is crucial as on one side those convicted of an offence can run for election, while on the other side they do not have the right to vote in elections to choose their leaders.

There are international documents which have guaranteed the Right to Vote for everyone without any discrimination and these documents on human rights have been used by the Indian Judiciary in order to interpret the meaning and extent of legislative provisions. Article 21(1) of the Universal Declaration of Human Rights guarantees everyone the equal right to participate in their country's government either directly or through elected representatives. Furthermore, Article 25 of the International Covenant on Civil and Political Rights (ICCPR) asserts that every citizen has the right and opportunity to take part in governmental activities, affairs, vote and access public services equally and without discrimination.

Prisoner Voting Rights Around The World

Voting rights vary across countries and within them. Some countries grant restricted or conditional voting rights to inmates. In several nations, convicts are denied the right to vote while incarcerated or on parole. The official statistics on inmates worldwide voting rights are not accessible. As per the BBC 2012 Report, Eighteen European nations, including Slovenia and Ireland, have granted all of their convicts the right to vote.

Numerous other nations, like Ghana, South Africa, Kenya, Iran, Israel, Pakistan, and Botswana, have granted their inmates the ability to vote in order to ensure their involvement in the establishment of their governments. Many nations have given their inmates the ability to vote, depending on the seriousness and nature of the offence. For example, inmates convicted of terrorist acts are not allowed to vote in Germany, while in Australia, voting rights are restricted to those who have served a minimum of three years in jail.

Judicial Perspective
Over the years the Indian Judiciary has passed many judgements on prisoner's right to life under Article 21 of the Indian Constitution. The Supreme Court in the case of Anukul Chandra Pradhan, Advocate v. Union of India & Ors, 1997 upheld the constitutionality of Section 62(5) of the Representation of People Act, 1951 which disenfranchises prisoners. The court cited three main justifications, firstly that prisoners forfeit certain freedom due to their own conduct therefore they cannot ask for the equality in voting rights, secondly the logistical challenge arising due to increased security needs for the voting of the prisoners, thirdly due to the intention to exclude individuals with criminal backgrounds from the electoral process.

In Praveen Kumar Chaudhary v. Election Commission and Ors case, the Delhi High Court opined that voting right is not a constitutional right but only a statutory right and the court upheld the constitutional validity of Section 62(5) reaffirming that the prisoners do not have the right to vote. However, in People's Union of Civil Liberties v. Union of India 2003, the Supreme Court clarified that Right to Vote is a constitutional right provided under the Constitution of India under Article 326. But the Right to Vote is not listed as a fundamental right.

PIL Of 2019

In 2019, a PIL was filed by a student from National Law School of India University, Bangalore in the case of Aditya Prasanna Bhattacharya V. Union of India and Ors., the Supreme Court has decided to examine the petition challenging a provision in the election law that imposes a blanket ban on the right to vote for the under trials and civil prison detainees. Moreover, Section 62 (5) of the Representation of the People Act, 1951 individuals in the lawful custody of the police and those serving a sentence of imprisonment after conviction cannot vote.

The issue was raised before the court in the context of the comparison between the convicts who were granted bail were given the right to vote and the under-trial prisoners who have not been proven guilty yet were confined in civil prison and were denied the right to vote. The petition also raised the point that the ban lacks reasonable classification as it makes no distinction between the convicted prisoners, undertrials and those who are in custody of police and rather violates the Article 14, Article 19(1)(a), Article 21 and Article 326 of the Constitution of India majorly on the ground that it disenfranchises a large segment of the population.

Analysis Of Voting Rights For Prisoners

The debate over prisoner's right to vote touches on fundamental aspect of democracy, justice, and civil rights. The voting rights are pivotal for the improvement of out criminal justice system. By denying the right to vote to prisoners, it excludes them from participating in democratic processes. The participation of convicts in the formation of the government is needed in order to rehabilitate and reintegrate them into the society after their release from the prison.

Critics however contend that the denial of right to vote for prisoners is justified as committing a crime breaches the social contract. Therefore, the law breaker should be denied the basic rights which a law-abiding citizen enjoys. Thus, denial of voting rights to prisoners or convicts gives an indication of disapproval from the society and acts as a deterrence.

On the other hand, the other view is that the principle of universal suffrage is a cornerstone of democracy and all citizens regardless of their conditions should be given the right to vote and should have a say in the governance of their country. The prisoners should not be denied the right to vote because they are still a part of the general public. It is ironical that the one who commits an offence can run for election, but they cannot vote in elections. Thus, the prisoners should get the right to vote as by engaging in the voting process, prisoners can maintain a connection to social norms and values, aiding their reintegration post release.

Conclusion And Suggestions
The voting right debate for prisoners remains a complex and contentious issue, touching on fundamental principles of democracy. It is the need of the hour to amend Section 62(5) of the Representation of People Act, 1951 and deliver justice to those who have been denied the right to vote. India being the largest democracy in the world lays major emphasis on safeguarding fundamental rights, human rights, democratic rights for the citizens, and with such a broad perspective it becomes the obligation of the government and legislature to frame laws regarding rights of prisoners which complies with these principles. There are a variety of ways in which enfranchisement of prisoners in India could be achieved.

These are the following:

• Amendment of the Section 62(5) and Section 8(3) of the Representation of the People Act, 1951
• Setting up polling booths with the help of the Election Commission in the prison to reduce the logistical cost.
• Collaborating with the NGOs and advocacy groups experienced in voting rights to reform to assist with the implementation of the voting process.
• Categorisation of the type of convicts and providing the right to vote in a phased approach, allowing prisoners serving sentences for less serious offences to vote, then expanding to include more categories.
• Establishing prisoner-led committees or groups focused on civic engagement and voting rights within facilities.

References:

1. Dr. Parvinder Kaur & Dr. Jai Mala, Prisoner's Voting Rights In India: An Overview Volume 2, Doon Journal of Multidisciplinary Research, 1-10, March 2023
   https://djmr.co.in/wp-content/uploads/2023/02/PRISONERS-VOTING-RIGHTS-IN-INDIA-AN-OVERVIEW.pdf
2. P. Chandrasekhar Rao, The Indian Constitution And International Law 139 (1st ed.1993).
3. Sunil Batra v. Delhi Administration, AIR 1980 SC 1597 (India).
4. Anukul Chandra Pradhan v. Union of India and Ors. AIR 1997 SC 2814 (India).
5. Praveen Kumar Chaudhary v. Election Commission & Ors. W.P. (C) 2336/ 2019 (India).
6. People's Union of Civil Liberties v. Union of India 2003 AIR 2003 SUPREME COURT 2363.
7. Aditya Prasanna Bhattacharya v. Union of India and Ors. 2023 LiveLaw (SC) 407.
8. Bhakti Parekh, Denial of Voting Rights To Undertrial Prisoners: An Unreasonable And Unjust Disqualification, LiveLaw
   https://www.livelaw.in/law-firms/law-firm-articles-/voting-rights-undertrial-prisoners-black-robes-legal-183859?fromIpLogin=88438.83706961306