PUCL Bulletin,

May 1996

Denial of voting rights to undertrials
-- By Rajindar Sachar

Section 62(5) of the Representation of People Act (RPA), 1951, provides that no person shall vote at any election if he is confined in prison, whether under a sentence of imprisonment or transportation or otherwise. This provision is clearly unconstitutional, illogical and indubitably a denial of human rights of undertrials.

The law in effect bars all undertrials who cannot arrange bail, including those charged for a minor offense and who are yet to face trial. As against this, an affluent undertrials - even those charged with more serious offenses like murder or rape - if allowed bail will be able to vote. This is because his economic status enables him to arrange bail. Such anti-poor legislation ill befits our flaunted claim that all are equal before the law.

Section 8 read with Section 11A of the 1951 RPA provides (that excepting for special offenses mentioned therein) a person is not disqualified to stand for election or vote unless he is convicted of any offense and sentenced to imprisonment for not less than two years. Such a person even if not released on bail will be entitled to stand for election but not vote. As against this in similar circumstances an affluent convict, if on bail will have the right to contest and vote. This is, indeed, a travesty of justice.

Section 60(b) of RPA permits a person under preventive detention to cast his vote by postal ballot. Now a person may be under prevention detention for being engaged in a heinous offense like endangering the security of the state or smuggling and narcotic traffic. Yet special provisions is made for him to vote. Such a solicitude by the state of these unsocial elements contrasts so poignantly in the treatment of those undertrials.

This discrimination goes against our jurisprudence and also the well-recognised human right in the administration of justice as laid down by stard minimum rules for the treatment of prisoners approved by the United Nations Economic and Social Council (1977), wherein Rule 84 (2) mandates that unconvicted persons are presumed to be innocent and shall be treated as such. It clearly amounts to a violation of their human rights.

The Supreme Court has clearly mandated that even convicts are not denuded of their fundamental rights which they otherwise possess.

Conviction for a crime does not reduce the person into a non-person.

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.

Under the UN Standard Minimum Rules a prisoner shall be allowed to communicate with the outside world under necessary supervision. Universal Declaration of Human Rights, 1948, proclaims in Article 21 that everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Article 21(3) further provides that the will of the people shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage. To similar effect is the mandate of International Covenant on civil and political rights, 1966.

It may be that because of the proximity of the elections, courts may find it difficult to give relief to undertrial prisoners to allow them to participate in the coming elections. But surely political parties which proclaim their commitment of human rights can remove this denial of justice by jointly requesting the President to issue an ordinance permitting the undertrial prisoner to vote in the coming elections. I have no doubt that if a joint request is made the election commission will not object.

It may be said that for long the undertrial prisoners have been deprived of their right to vote and hence there is no urgency to remove this injustice. I strongly disagree. This is an argument which ignores the basic law that if the system is unconstitutional, its widespread use will not make it constitutional.



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