PUCL Bulletin,

October 1997

Supreme court denies voting rights to undertrials
Finding is against our constitutional provisions and international covenants

(The following article by Mr. Sachar, former President of PUCL refers to a writ petition filed by Mr. Anukul Chandra Pradhan in the Supreme Court under Article 32 of the Constitution. The PUCL also intervened in the matter, and became intervenor.

The case relates to voting right of undertrial prisoners. PUCL and Mr. Pradhan pleaded that undertrial prisoners be given the voting right. The Supreme Court, however, did not accept this plea and dismissed the writ petition in a judgment given on 9 July 1997.

Mr. Sachar appeared and argued. He was assisted by Mr. Sanjay Parikh, Advocate..ed)

Those who have read Charles Dickens' Oliver Twist have felt intrigued as to why Dickens made Mr. Bumble say, if the law supposes that … the law is a ass, a idiot". Similarly many may have wondered as to what provoked George Chapman (1559-1634) say, "I am ashamed the law in such an ass". But they might find it easier to do so now in the context of the recent Supreme Court decision upholding the validity of law which debars a slum dweller accused of even a minor offence from voting because he is languishing in jail, being too poor to offer bail bonds, while charges of murder, rape or corruption to be elected as member of Parliament.

A public interest litigation had challenged Section 62(5) of Representation of People Act, 1951 which denies to undertrials who are in prison or police custody the right to vote while permitting this to persons accused of heinous offences but who are out on bail. The plea that this provision favours the rich smugglers and black marketeers who can afford bail bonds, against poor undertrials, failed to persuade the court to hold this provision as unconstitutional.

A court has upheld this restriction on undertrials by seeking support from the well accepted proposition that criminalisation of politics is the negation of democracy and thus subversive of free and fair election which is a basic feature of the Constitution. A layman, however, would find absurdity in a law which at the same time permits a convicted person and sentenced to less than two years to contest elections (even from jail) and vote at an election (if out on bail) even though sentenced for 10 years, and wonder as to how this discrimination advances the cause of fair and free elections.

The court has also justified permitting a person in preventive detention to vote by postal ballot while denying the same right to undertrials in detention by holding that preventive detention is to prevent breach of law while imprisonment on conviction or during investigation is subsequent to the commission of crime and, therefore, this classification is reasonable. Persons under preventive detention are those against whom allegations are of smuggling and of narcotic offences. But even then such a person can only be kept in preventive detention if it is justified on a review by three judges of the High Court. If in spite of this prima facie strong proof a detenue is permitted to vote at the election, what is the logic for denying the right to vote to a poor undertrial in jail, against whom there is only an allegation of guilt?

This differential attitude against an undertrial would be in conflict with normal criminal jurisprudence and specifically with Article 84 of the Standard Minimum Rules for Treatment of Prisoner, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council to the effect that "unconvicted prisoners are presumed to be innocent and shall be treated as such".

The finding of the court also runs counter to the right guaranteed by Article 25(b) of human rights guaranteed under the International Bill of Human Rights, namely, the International Covenant on Civil and Political Rights, which specifically provides that "every citizen shall be the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions to vote and to be elected at genuine periodic elections shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; which specifically recognises a right to vote and to be elected at genuine periodical election."

In the UK, the right to vote is denied only if a person is convicted and during the time he is detained in a penal institution. In Israel even a convicted person in jail is allowed to vote.

Notwithstanding the international law and conventions, the court felt the classification to be valid by holding that some elbow room must be available to the legislature with regard to classification. But, with respect, the court has ignored the caution given by the apex court more than 40 years ago that good faith and knowledge of existing conditions on the part of a legislature have to be presumed. That is so; yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to invalidate the protection clause of Article 14 by not restraining State action.

Another justification mentioned for upholding the law is that it would mean deploying a larger police force for the conduct of elections. But it was never pleaded that undertrials should be taken personally to polling booths to cast their votes. All that was claimed was the right to vote by postal ballot, as given to smugglers and others detained under preventive law. This did not require even one extra policeman to be deployed.

But what is of distorting consequence is the reasoning that as the right to vote is subject to the limitations imposed by the statute, the challenge to any provisions of the election law, therefore, cannot be made with reference to a fundamental right. This is contrary to Article 13(2) which mandates that a law which contravenes any of the fundamental rights shall be void. Thus the election law is no holy cow to claim immunity from the sweep and protection of Article 14. The guarantee of equal protection under Article, according to earlier Supreme Court decisions, embraces the entire realm of state action, even in the matter of granting privileges and contract. How then can it be said that the statute on election law is immune from scrutiny under Article 14?


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