Whether prisoners should have the right to vote has been the subject of intense political debate in the UK for a few years now. In Hirst ((2006) 42 E.H.R.R. 41) as well as Scoppola ( E.C.H.R. 868), the European Court of Human Rights (ECtHR) held that blanket prohibitions on the voting rights of convicted prisoners are incompatible with article 3 of the First Protocol to the European Convention on Human Rights. The Scottish Registration Appeal Court also made a declaration of incompatibility against the UK’s blanket ban on prisoner voting (Smith v Scott  C.S.I.H. 9). The British government has introduced a draft bill for pre-legislative scrutiny in which two out of three options laid out by the government seek to purge the incompatibility, while the third restates the existing ban. Regardless of how the story develops, the debate that has unfolded is an important one in the context of a constitutional democracy which pledges a commitment to human rights.
A similar concern underpins the short but significant decision of the Supreme Court of India in Chief Election Commissioner v Jan Chaukidar (Civil Appeals 3040-3041 of 2004, decided on 10 July 2013). This was an appeal from the judgment of the Patna High Court declaring that prisoners and those in lawful police custody would be disqualified from contesting elections to the Union Parliament or the legislative assemblies of states. The case arose in the context of the steady flow of politicians accused of criminal offences into legislative bodies (several studies reveal that about a quarter of the elected members of the Indian Parliament face criminal charges). An NGO filed a public interest litigation petition seeking a declaration that convicted and undertrial prisoners had no right to contest elections.
The NGO’s argument (which the court accepted) was framed as follows. The Representation of the People Act 1951 is a federal statute that governs the conduct of elections in India. It stipulates that one of the qualifications for membership of legislative bodies is that the candidate must be an ‘elector’. It also provides 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 the lawful custody of the police’ (except in cases of preventive detention). Relying on these and other statutory provisions, the court decided that since prisoners were deprived of the right to vote, they could not be considered as ‘electors’ and would automatically be disqualified from standing for elections during periods of incarceration.
Although the court’s intentions may have been laudable, its line of reasoning is problematic at several levels. To begin with, the Supreme Court took for granted that the blanket ban on prisoner voting is itself compliant with fundamental rights, a position which is highly controversial in the UK and elsewhere and has not been considered by the Indian Supreme Court for the last sixteen years. As in the UK, there is no offence-based or sentence-based classification of prisoners in India, with the result that prisoners are debarred from voting irrespective of the gravity of the offence that they have committed or the length of their sentence. But the ban on prisoner voting in India is more sweeping than that that imposed by section 3 of the UK Representation of the People Act 1983 in one respect. Whereas the UK prohibits convicted prisoners from voting, the Indian disqualification extends to those awaiting trial and those in lawful police custody as well. Remarkably, this means that those whom we presume innocent until proven guilty are denied the right to vote.
One of the reasons for which the Supreme Court found it unnecessary to examine the constitutionality of the ban on prisoner voting was that the court erroneously considered the right to vote as a statutory endowment which can be revoked at any time by a majority in Parliament. It remarkably endorsed the observation of the Patna High Court that it is a ‘privilege to vote, which privilege may be taken away.’ The characterisation of the right to vote as a privilege is deeply problematic. It fits poorly with most modern conceptions of democracy, which accord a fundamental (and sometimes even predominant) status to the right to participate in democratic decision-making through the ballot box.
The Supreme Court founded the decision that prisoners have no right to contest elections based on the argument that prisoners are not electors, since they are disqualified from voting. This interpretation implies that the disqualification from contesting elections will remain so long as prisoners are debarred from voting. This does not bode well for future challenges to the sweeping ban on prisoner voting rights in India, since the invalidation of this statutory provision would bring down with it the ban on contesting elections, which has received widespread judicial and public support in the recent past. So the court has unknowingly made it more difficult for itself to strike down the ban on prisoner voting rights in the future.
Overall, the Supreme Court’s judgment is based on a skewed understanding of democracy. This is demonstrable through a concluding portion of the Patna High Court judgment, which was affirmed by the Supreme Court on appeal: ‘[t]he issue of crime as attached to candidates or voters pollutes the entire election process. It effects [sic] the sanctity of elections as a whole. It taints democracy.’ Even if one were to agree that disqualifying prisoners from contesting elections is a proportionate restriction on political rights, it is difficult to accept that enabling prisoners to vote would stain the sanctity of the democratic process. An important measure of the success of a democratic state is how it treats those that lie at the margins, including prisoners. The ban on prisoner voting then, which was glossed over by the Supreme Court, is what really taints the democratic process by excluding an entire segment of peoples from the exercise of their first democratic right. The Supreme Court would have benefitted from at least examining whether, to borrow the words of the ECtHR in Scoppola, the ‘general, automatic and indiscriminate restriction’ on the right to vote is permissible in a professedly diverse and inclusive constitutional polity.
Chintan Chandrachud is an MPhil Candidate at St Catherine’s College, University of Oxford
Suggested citation: C. Chandrachud, ‘Prisoner Voting Rights in India’ UK Const. L. Blog (8th August 2013) (available at http://ukconstitutionallaw.org)