INTRODUCTION
India is the largest democracy in the world and has a federal system, so here elections are conducted after a regular interval of time for appointing different levels of government. People by the way of their vote choose their representatives to run the country. Therefore, the right to vote is one of the most important rights for every eligible voter in India.
Recently, India witnessed its 18th general election and various candidates were nominated from different constituencies. Among all the other candidates, some candidates were in the news as they were accused of different offences and some of them were in detention. It led to interesting discussions concerning the rights of accused persons in elections.
Article 326 of the Indian Constitution provides that every person above 18 years of age who is not disqualified by any law is entitled to be registered as a voter. The Representation of Peoples Act [1]deals with the provisions related to elections in India which provides various qualifications and disqualifications concerning rights of citizens in elections. There are two major rights to every eligible citizen in the context of an election which are the right to elect and the right to be elected. However, the status of these rights is different for prisoners in India.
RIGHT TO VOTE
The right to vote gives a person the authority to elect their representatives. Section 62(1) of The Representation of People Act 1951 states that every person registered under the voter list has the right to vote from his constituency. But Sec 62(5) provides that a person confined in a prison whether under sentence or transportation or if a person is in lawful custody of police, such person is not entitled to vote although he is registered as a voter on the voter list. This subsection does not apply to any person under preventive detention. [2]
In the case -Anukul Chandra Pradhan v. Union of India and Ors[3], section 62 (5) of The Representation of Peoples Act was challenged as violative of Articles 14 and 21. The court upheld it by stating it does not violate Article14 &21 of The Constitution.
In another case S. Radhakrishnan v. Union of India & Ors[4], the Supreme Court pronounced that the purpose of Section 62 (5) is to avoid the criminalization of politics. The court observed that “the right to vote is a statutory right, not a fundamental right”. It is subjected to conditions of statute.
This section applies the total ban on under trials, convicts even in civil cases and detainees to exercise their right to vote. But the person bailed by the court has the right to vote. [5] According to NCRB’s latest published data, approximately 500,000 people are in prisons and 4, 34,302 are still under trial. [6] This provision deprived about 76% of the prison population of exercising their rights even when they are not proven guilty in the eye of the law.
In India, the legal presumption of innocence until proven guilty is followed but, this presumption fails in the context of the right to vote for people under trial. Another argument against it was that people convicted in civil cases who are under the custody of the police, why are their rights denied when the same rights are given to those who are convicted in criminal cases & bailed by the court. It lacks the intelligible differentia. [7] The non-availability of proper facilities is said to be one reason to deny the right to vote to prisoners, [8] but the question is whether the non-availability of facilities can be regarded as an adequate reason to deny any right. Doesn’t the state have the responsibility to provide facilities for the enjoyment of rights when people are obeying the rules? Indian criminal system opted for reformatory practices, to make prisoners a better person for society at large but denying them their rights seems to be contrary to it.
So many questions are raised concerning the rights of under-trials; detainees who have not been convicted remain unanswered by the authorities.
RIGHT TO BE ELECTED
Right to be elected means the authority to stand as a candidate in the election, if people elect him/her, then the person is to represent them in Parliament or state legislature as the case may be. Part II of The Representation of Peoples Act states the qualifications and disqualifications for a person to contest as a candidate in the election. According to provisions of this act, the person has to be an elector and in case the seat is reserved for a member of SC, ST then the candidate has to be a member of such community from that constituency. [9]
Section 8 provides the disqualifications on conviction for certain offences. Sec 8(1) gives a list of offences, if a person is convicted under those offences, then he/she shall be disqualified for 6 years from the date of conviction. If a person is convicted under the laws mentioned in sec 8 (2) and he/she is given the punishment of imprisonment not less than 6 months, then the person will be disqualified for 6 years after his release. In case, a person is convicted of an offence other than mentioned in subsections 1& 2 and punishment is given of imprisonment not less than 2 years then the person will be disqualified from the date of conviction & remain disqualified for 6 years from the date of his release. [10] Section 8 (4) exempts existing MPs and MLAs from these disqualifications, till 3 months from the date of conviction or till the appeal or revision filed by them is not decided.
It is important to note that section 8 only disqualifies the person ‘convicted’ of said offences, not the person charged or an accused or the person under trial. An Accused is a person alleged to have committed some act or omission declared as an offence under any law but the allegations are yet to be proved in the court. On the other hand, convicted is used for a person who was alleged to have committed any offence and such allegations are proved in the court. Till the time, allegations are not proved in court, the person cannot be disqualified.
After analyzing various judgments[11], the Election Commission in its order[12] clarified that except existing MP, MLA any other person will be considered disqualified from the date of conviction as announced by the Trial court, under offences mentioned in section 8 even when bail is granted or appeal is pending. This is because the conviction order has not yet been overturned by the court. If the court stays the conviction order, then disqualification is removed.
These provisions are made to prevent the criminalization of politics and provide rights to those who are not proven to be guilty. In the 2024 Lok Sabha Elections, about 1643 candidates contesting in the election had criminal cases registered against them. [13] As these candidates were not yet convicted, they were not disqualified to contest the election.
CONCLUSION
The Democratic setup of India is part of the basic structure of our Constitution. [14] It cannot be destroyed by way of amendment. Elections are the backbone of this democratic structure and the right to elect & right to be elected are part of it. These are statutory rights provided under The Representation of People’s Act. When a person gets accused of an offence as mentioned under provisions of the Statute, their rights are subject to conditions mentioned in the law. An Accused person under detention or under trial who is not proven guilty has the right to contest as a candidate in elections but unfortunately does not have the right to vote. Many arguments are raised for or against it. There is also a contradiction between the right to vote given to a person convicted but bailed by the court and a person not even convicted by the court. These contradictions create questions in the minds of the public.
Many cases are filed before the Judiciary concerning these contradictions, but a major observation by the Court is that these rights are statutory and are subject to the conditions mentioned in them. So the legislature has the power to amend them. But if the Legislature has the full authority, then these rights can be denied to the majority of people by simple amendment which will affect the democratic structure of the country.
So the Legislature must create uniform laws having intelligible differentia with the nexus to their object of preventing the criminalization of politics. The right to vote must be extended to undertrials, accused not convicted yet. Also, the person convicted under civil cases should be given the right to vote as the nature of an offence they are convicted of, does not infringe the object of the law.
Author(s) Name: Harmandeep Kaur (University Institute of Legal Studies, Panjab University, Chandigarh)
References:
[1] The Representation Of People Act 1951
[2] The Representation Of People Act 1951, s 62(5)
[3] Anukul Chandra Pradhan v. Union of India and Ors [1997] 6 SCC 1
[4] S. Radhakrishnan v. Union of India & Ors [1999] AIRONLINE 550
[5] Dr. Parwinder Kaur, Dr.Jaimala,’ Prisoners voting right in India: an overview ’(2023) 2(1) Doon J Multidiscip. R< https://djmr.co.in/wp-content/uploads/2023/02/PRISONERS-VOTING-RIGHTS-IN-INDIA-AN-OVERVIEW.pdf> accessed 7 June 2024
[6] Samridhi Tewari, Soibam Rocky Singh, ‘Blanket ban keeps out over 4 lakh undertrials from exercising franchise’ The Hindus ( New Delhi, 8 May 2024) < https://www.thehindu.com/news/cities/Delhi/blanket-ban-keeps-out-over-4-lakh-undertrials-from-exercising-franchise/article68154705.ece> accessed on 7 June 2024
[7] Bhakti Parekh,’ Denial Of Voting Rights To Undertrial Prisoners: An Unreasonable And Unjust Disqualification’ ( Livelaw, 18 Oct 2021) < https://www.livelaw.in/law-firms/law-firm-articles-/voting-rights-undertrial-prisoners-black-robes-legal-183859> accessed on 6 June 2024
[8] Anukul Chandra Pradhan v. Union of India and Ors [1997] 6 SCC 1
[9] The Representation Of People Act 1951, s 3-6
[10] The Representation Of People Act 1951, s 8(3)
[11] Purshottamlal Kaushik Vs. Vidya Charan Shukla [1980] AIR 188 MP), Shri Sachindra Nath Tripathi Vs. Doodnath Election Petition 26 of 1985
[12] Election Commission of India: Criminalisation of Politics – participation of criminals in the electoral process as candidates – disqualification on conviction for offences – effect of appeal and bail- regarding (Election Commission of India No. 509/Disqln./97 – J.S.I Dated: 28th August, 1997 )
[13] PTI ‘Lok Sabha polls: 2,572 crorepatis, 1,643 candidates with criminal cases in fray’ The Hindu ( New Delhi, 3 June 2024) < https://www.thehindu.com/elections/lok-sabha/lok-sabha-polls-2572-crorepatis-1643-candidates-with-criminal-cases-in-fray/article68246509.ece> accessed on 9 June 2024
[14] Kesavananda Bharti v State Of Kerala [1973] AIR 1461(SC)
