VOTING RIGHTS TO PRISONERS

Dibyendu Sarkar

BACKGROUND• Disenfranchisement of prisoners and ex-

prisoners is an issue debated extensively in international fora

• The debate has intensified since the judgment of the European Court of Human Rights in the case of Hirst Vs. the United Kingdom which ruled in favour of voting rights to the prisoners

The principles of adult suffrage• The principles of adult suffrage emanate from

– Universal Declaration of Human Rights which says, “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives” (Article 21.1)

– The International Covenant on Civil & Political Rights (ICCPR) which states that “every citizen shall have the right to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage….”

– the Charter of the United Nations which (in Article 1, para 2) states that the purpose of the United Nations is to promote and encourage respect for human rights and for “ fundamental freedoms for all without distinction as to race, sex, language, or religion”

– International Convention for Elimination of all forms of Racial Discrimination (CERD) which requires “the states to guarantee the right of everyone, without distinction…political rights, in particular the right to participate in elections- to vote and to stand for election- on the basis of universal and equal suffrage”

Rights of PrisonersRights to Prisoners is internationally guided by the United Nations’ Standard Minimum Rules for the Treatment of Prisoners – Rule 60 (2) indicates that “the regime of the institution

should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”.

– Rule 61 of the said Rules indicates that “the treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it.

The Rules have far reaching effect on the right to suffrage for the prisoners

Electoral Rights

• Electoral Rights may be seen from three perspectives:– Right to registration in the electoral rolls– Right to vote at elections– Right to contest for elections

Voting Rights for Prisoners: arguments in favour

• Voting is a fundamental right in a democracy, any attempt made to restrict that right has to be made on the basis of a compelling reason that meet specific legal tests.

• Denying prison inmates the right to vote is likely to send messages that undermine respect for the law and democracy

• To deny the prison inmates the right to vote is to lose an important means of teaching them democratic values and social responsibility

• Any democracy built upon the principles of inclusiveness, equality and citizen participation cannot deny the rights to vote to a specific category of citizens only because they are confined by the government system

• The focus of prison administration has totally shifted from a control centric approach to an approach of reforms and rehabilitation- granting democratic rights to vote is a basic prerequisite for such an approach

• The restriction in voting makes the prisoners lesser citizens and place them outside the law that applies to others without there being a demonstrable need to do so

International experience: USA

• In most of the US States, felons and ex-felons are disenfranchised for their prison terms and for a period of six years thereafter

• Since 1997, 19 US States have amended felony disenfranchisement policies to reduce their restrictiveness and expand voter eligibility– Repealing/ amending lifetime disenfranchisement law– Expanding voting rights to persons on probation or

parole– Easing the restoration process for persons seeking to

have their rights to vote restored after completing their sentences etc.

International experience: European Countries

• In its latest report on civil rights in the UK (2008), the UN human rights committee has expressed concern that British prisoners do not have the vote and stated that "the general deprivation of the right to vote for convicted prisoners may not meet the requirements" of the UN's human rights covenant.

• Currently, convicted British prisoners are not entitled to vote.

• Many European countries, including Ireland, Spain and the Netherlands, give all their prisoners the right to vote.

• In some countries, such as France and Spain, judges can impose the loss of voting rights as an additional punishment.

• Britain is one of only nine European countries, including Russia, Bulgaria and Romania, where all convicted prisoners are banned; in the UK, remand prisoners retain their right to vote.

International experience: European Countries

International experience: Other Countries

• Australia

• Canada

• South Africa

• Nepal

• Bangladesh

• Maldavies are known to have extended voting rights to prisoners

The Indian Scenario• In India electoral rights are guided by the

provisions of– The Representation of the People Act,1950– The Representation of the People Act, 1951– Registration of Electors Rules, 1961– And related State Acts and Rules for election

to Urban and Local Self Government Institutions (Municipalities and Panchayats)

Representation of the People Act,1950

• Section 16 deals with disqualifications for registration into an electoral roll. Any person disqualified from voting under the provisions of any law relating to – Corrupt practices and– Offences in connection with elections will have his name

struck off from the electoral rolls• Sub-section 2 of Section 20, while defining the meaning

of ordinary resident states, “a person… who is detained at any prison or other legal custody at any place, shall not, by reason thereof be deemed to be ordinary resident therein”

Note: Does it mean that he shall be deemed to be ordinary resident of the place where he should have lived had he not been detained?

Representation of the People Act,1951

• Chapter III of the Act deals with “Disqualification for membership of Parliament and State Legislatures”

• Section 8 enumerates a number of specific offences which disqualifies a person from membership of Parliament or a State LegislatureNote: By implication, persons not convicted of those offences are qualified to contest at an election to the Parliament or a State Legislature, even though the person may be confined in a prison

Representation of the People Act,1951

• Section 11 disqualifies persons convicted of electoral offences and corrupt practices from voting.

• Section 62 deals with the right to vote. There comes sub-section (5) which provides the near blanket ban on voting by prisoners:– “ 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 the lawful custody of the police• Provided that nothing in this sub section shall apply to a person subject to preventive detention under any law for the time being in force”

A critique of such a blanket ban

• Is it not a travesty of justice that a person who is– Notionally eligible to be a registered voter

– Eligible to contest at an election– Has not even been convicted or has been convicted for a crime which has got nothing to do with electoral offence/ corrupt practices

Is denied the right to vote simplybecause of his confinement in prison/ police custody?

Way out: Judicial activism

• Internationally, allowing voting rights to prisoners in most of the countries followed landmark judgments by the highest Courts of the countries

• In India, unfortunately, in a Judgment in Chandra Pradhan Vs. State, Supreme Court negated direction to allow undertrial prisoners the right to vote

• Since 1997, however, 12 years have passed and across the world landmark verdicts have been given by the Highest Courts in favour of enfranchisement of the prisoners

• There may be further PIL in the Supreme Court seeking directions to the Government for amendment in the provision of the RP Act, 1951

Way out: Advocacy with the political executive

• Civil society organisations, especially the rights based ones, may mount increased pressures on the elected representatives to bring about changes in the RP Act,1951 to extend voting rights to the prisoners

• Initiation of a debate in the society may also help

West Bengal perspective• West Bengal has the most proactive

Correctional Services Act in the Country• There is an enabling provision in the CS Act of

the state, which states, “ every prisoner shall, subject to the provisions of any law for the time being in force, have the right to vote in the elections to the State Legislature or Parliament or to any local authority

• Thus the stage is set for granting voting rights to the prisoners once the provision of the RP Act, 1951 (Sec-62 (5)) is amended.

Can the right be extended in the present scheme of things for the

Panchayat and Municipal Elections?