According to court ruling, right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote can be subjected to limitation imposed by the statute. The right to vote is statutory right, according to which the law can give it and law has the power to take it away. Prisoners right to vote means if any person is convicted and is in prison be it any reason, he has no right to vote. In India any person who is convicted or a criminal can contest in any election for member of legislative assembly or Member of Parliament, but they cannot cast their vote in any election. A detainee has right to position their votes in elections. It is a harsh reality in India that any criminal can move towards becoming MLA and MP but a prisoner or someone under trial has no right to vote. According to my opinion legislature of India should make an enactment to permit the prisoners ideal to cast their vote and choose their ideal leader.
There are about 5 lakh prisoners in India who will still not be able to vote. Delhi High Court dismissed a plea seeking voting rights for those lodged in jails serving their sentences deprived of basic human rights.
The question is should the prisoners be allowed to vote and choose their leaders? Does their opinion matters? Are they worth choosing the person who is going to govern our country?
So for that we need to know who is a prisoner? Are all prisoners similar? Are all of them a theft to humanity? Short answer to these questions is NO, right to vote is a basic right in a democratic country like India. The nature and extent of the privileges provided/can be provided to individuals kept in political confinement against their will because they have been convicted of performing an unlawful act. Such person are provided least privileges and rights.
Now here comes a term with wide range of aspects I.e. “unlawful act”. Unlawful acts can be murder, rape, serial killing, murder caused in defense, those who are still under trial, prisoners of conscience, political prisoners, human right activists, those who are forcefully detained under doubtful circumstances.
Now the question is does imprisonment changes a person who is imprisoned?
Days pass, months pass and years pass, can you imagine having no space to call your own, no choice over who to be with, what to eat, or where to go. You don’t have any one from your family with you. All days, all festivals are same for you. There is threat and suspicion everywhere. Even a gentle human touch can be difficult to find in prisons. Sometimes there are days when you are tortured brutally, sometimes death seems easier than imprisonment. Yes, that is a place which you call prison.
If these are circumstances, then prisoners confined to this kind of environment have no option but to change and adapt. This is especially true for those prisoners who are facing long-term sentences.
There are various circumstances when a prisoner commits crime. It can be out of jealousy, rage, self-defense, lust or also a mistake. Yes, we cannot say that all prisoners are changed during/by imprisonment.
Talking about juvenile crimes, In many cases in which minors are tried for murder, an assessment is done to determine whether or not the minor was capable of understanding right and wrong at the time they committed that crime.
There are unfortunately plenty of young people who both commit horrific brutal crimes which are shame on humanity and who fully know and understand what they are doing and still prefer to do that. For those people I think its totally justifiable not giving them any of their basic rights.
The juvenile justice system strives for rehabilitation and not for punishment. Juveniles are very responsive to rehabilitation but it is not rare that when they grow up the are likely to commit crime especially those who commit theft or robbery. So they can land in prison again. Such prisoners should not be given right to vote. Because surely they are not mentally able to choose between right and wrong so how will they choose their leader.
There are people who were imprisoned as teenagers for acts of murder and they are very much reformed human beings. Those people are likely to be transformed when they are in prison and for such people the definitely deserve this basic right to vote.
But also we can’t ignore the fact that there are some who even after rehabilitation or rigorous imprisonment or after committing small crimes like theft and robbery remain still the same or go even worse.
Now coming to different part of prisoners I.e. prisoners of conscience, human right activists. Prisoners of conscience’ are usually citizens who imprisoned for questioning the authority and trying to hold them accountable for their modes of governance.
There are certain prisoners of conscience who are peacefully protesting for what they think should be right or wrong. Then there are some protesters shouting anti government slogans, some of them are creating riots in which many protesters and even innocents are killed.
We cannot quote every prisoner of conscience same.
And also this can’t be said that after imprisonment they are changed into a better person or their rage is doubled. Across India, anyone who dares to express political disagreement with the government, risks going to jail on trumped up charges, in which trial and bail are difficult. Those Prisoners have to suffer a lot and also sometimes are tortured. In my opinion prisoners of conscience should definitely have a right to vote and choose their leaders. As the country we live in is democratic and secular. Citizens here have right to opinion and speech.
Now after we know about prisoners, should they be allowed to vote in India?
This is a never ending debate. Voting in India is one of the fundamental rights of its citizens and should be given to all. But keeping in mind increasing crime rate and brutality, if prisoners are given their all rights then will they ever realize that what they committed is a crime.
Under representation of people act it was quoted that no person shall vote at any election if he is confined in a prison whether under a sentence of imprisonment or transportation or otherwise, or is in police custody.
A bench of Chief Justice D N Patel and Justice C Hari Shankar noted that the right to vote provided under the act was subject to restrictions imposed by the law, which does not allow prisoners to cast vote from jails.
According to judgment of the apex court in 1997, which held that the effect of sub-section (5) of Section 62 of the Act is that any person confined in prison is not entitled to vote in an election. But this restriction does not apply to a person subjected to any kind of preventive detention.
According to my opinion, , Voting ban should be criticized on the ground that they are prisoners. Sentence-based classification should be done and then there should be a voting ban. Prisoners are deprived from voting which should be among their basic right irrespective of the kind of the offence/crime they have committed, or the length of their sentence they are seeking. This law makes no difference between convicted prisoners or under trials.
Under trials should be allowed to vote because there are many people, awaiting trial, who have spent more time in prison than the actual term their alleged crime merits. Some of them at last are proven non guilty.
In Anukul Chandra Pradhan Vs Union of India (1997) case, the petitioner argues that the decision according to which a prisoner is not allowed to vote did not take into account the fact that right to vote is a constitutional right as according to Article 326. The decision did not correctly appreciate and acknowledged the challenge on the basis of Article 14. The petitioner raised a point that similar provisions demanding prisoners’ right to vote have been struck down by Supreme Courts of Canada and South Africa and the European Court of Human Rights.
The prisoners of almost every country including India are denied most of the rights, but still they are Citizens of India, and according to which they should be allowed to cast vote and choose their leaders.
Our constitution allows the prisoners who are out on bail to vote, but not those who are still confined, What could be the logic behind this? Are those who are out on bail not equally prisoners like those who are serving the sentence? Why this discrimination? Just because most of the prisoners not have enough money and resources to get themselves a Bail?
Many of the prisoners are in prison because of false accusations, less resources to get out. Why are they deprived of their rights?
A serious question to note: If an under trial person can fought for election, if a person who has already committed many crimes can stand in election, then why not a prisoner can cast her or his vote and choose his/her leader.
Three law students, Atul K Dubey, Prerna Singh and Praveen Kumar Chaudhary filed PIL raising a question that if One Can Contest Elections From Jail, Why Not Vote?
Convicted populations within most countries including those which are leaded by dictators are often given bare minimum rights, and treated like second-class citizens by virtue of their incarceration or even barely treated as a human.
In India there are across five lakh prisoners. If they are allowed to vote, then the government, and those standing for election will put more attention to them and their conditions and then those could be improved.
These problems of prisoners could never be improved unless those prisoners could themselves become part of the democratic voting process and represent their own problems with or through their elected representatives.
Issues like overcrowding, stale food, violence, institutional violence, lack of facilities like sanitation, hygiene, food and amenities like newspapers, books etc can never be solved if prisoners don’t become stake-holders.
Students who had filed PIL suggested for arrangements for prisoners to vote from inside prisons. They proposed the setting up of EVM machines within prisons to cut down on safety and financial concerns. No one has to leave the prison to vote.
Currently, only proposers for prison reform, have a voice in the electoral process. They are outsiders as they work with prisoners rather than prisoners themselves. This reform if enacted could enable insiders (prisoners) to speak in their own voice.
Depriving prisoners of voting rights come from the archaic concept of ‘civic death,’ which advocates that since prisoners have broken the ‘social contract’, they are not entitled to the rights enjoyed by normal citizens. In contrast with ‘Universality Principle,’ which argues that some rights are so basic, that every human being should be able to enjoy them. The right to vote has been acknowledged under Article 21 of the UDHR and Article 25 of ICCPR as a human right. But India is among very few countries that puts ban on prisoner franchise rights, despite being a party to both the Conventions.
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