ELECTION LAW

NATIONAL UNIVERSITY OF STUDY

AND RESEARCH IN LAW,
RANCHI

RESEARCH PAPER
ON

RIGHT TO VOTE BEHIND BARS: IS IMPRISONMENT NOT

ENOUGH?

SUBMITTED TO: SUBMITTED BY:

DR. VAGISH UPADHYAY MUJEEB UR REHMAN
ASSISTANT PROFESSOR, LAW SEMESTER – Xth (A)
NUSRL, RANCHI ROLL NO: 870
 TABLE OF CONTENTS
Research Question......................................................................................................................3

I. Introduction.............................................................................................................................4

II. Concept of Right to Vote.......................................................................................................4

III. International perspective on prisoners' voting rights...........................................................5

IV. Different nations regarding the ability to vote for prisoners................................................7

V. Prisoner voting rights in India...............................................................................................9

VI. Conclusion.........................................................................................................................11

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 RESEARCH QUESTION
Issue 1) Should Right to vote be provided to prisoners, if yes, then whether interpretation of
Indian Law allows such conferment or amendment is required to confer so??

Issue 2) Whether such right has been conferred in other English jurisdictions?

Issue 3) Whether human right perspective allows so?

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 I. INTRODUCTION
The right to vote is not an absolute right because it can be revoked if the norms of citizenship
are not followed. There are certain responsibilities of a citizen that safeguard the public
peace. There are certain exceptions to the Right to Vote under the Representation of People
Act. It specifies the individuals who are denied the right to vote, and prisoners are one of the
most significant exceptions. As a result of their detention, prisoners are denied many
fundamental liberties in this country. This denial of rights is a means of protecting the general
public, because allowing a prisoner to travel freely gives people false hope that they too can
do so. Prisoners' rights have been a topic of discussion for many years, as it is difficult to
determine whether or not human rights apply to them.

The election process provides the citizens of India with the "Right to Vote", a fundamental
right in every democratic society. Right to Vote is a broad concept that provides a citizen the
opportunity to choose and be chosen in the concept of democracy and to access his right;
such a right granted to him is the primary reason elections are held. Right to Vote is a
Constitutional Right that has been granted under Article 326 of the Indian Constitution,
which was introduced by the Motilal Committee when they developed the concept of
Universal Adult Suffrage, which grants the right to vote to anyone regardless of gender,
occupation, class, caste, education, or any other form that segregates people from one
another.

II. CONCEPT OF RIGHT TO VOTE

Prior to India's independence, the right to vote in elections to the then-existing legislative
bodies was restricted on the basis of landed property, tax payment, educational qualifications,
and so on, and was therefore limited to privileged segments of Indian society. 1 Such
restrictions on voting, even after independence, would have harmed the country's democracy,
as the nation was crumbling and the only way out was to keep the population united. And one
way to accomplish this was to grant them the same privileges as everyone else. In fact, the
Motilal Nehru Committee,2 which was established by the All-Parties Conference to determine
the fundamental principles of the Constitution for India, advocated for universal adult
suffrage in India as early as 1928. Article 326 of the Constitution of India grants the right to

1
V.S. RAMA DEVI, S.K. MENDIRATTA, HOW INDIA VOTES: ELECTION LAWS, PRACTICE AND
PROCEDURE 282 (Lexis Nexis, 2017).
2
Id.

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vote to every Indian citizen who is at least 18 years old and who is not disqualified by this
constitution or any law enacted by the appropriate legislature. 3

The Supreme Court4 has held on multiple occasions that, under our laws, the 'right to vote' is
a simple statutory right, not a common law right or a fundamental right, although casting a
vote can also be construed as a form of expression under Article 19(1)(a) of the Indian
Constitution. However, in Rajbala v. State of Haryana,5 the court considered the same view
as in PUCL6 and DMDK7, namely that the 'right to vote' at elections for either the Lok Sabha
or State legislative assemblies is a constitutional right. The court has also argued that citizens
who have the 'right to vote' do not inherently have the 'right to recourse' in any of the
aforementioned elections, because the 'right to contest' is subject to laws prescribing both
qualifications and disqualifications for candidates. In India, the ability to vote and the right to
be on the Electoral list are separate. It is up to the citizens of India to decide whether or not
they will exercise their right to vote, as it is a highly selective and personal privilege. The fact
that the government cannot simply revoke such a democratic right, however, is absolute;
therefore, even if a citizen chooses not to exercise this right, it should always be available.
The right to vote is distinct from our fundamental rights, which can be limited through
reasonable restrictions, whereas the right to vote is limited primarily by eligibility and not by
the arbitrary decisions of the governing government. The right to vote is unaffected by
governmental decisions because democracy defines the people's freedom of choice.

III. INTERNATIONAL PERSPECTIVE ON PRISONERS' VOTING RIGHTS

The Universal Declaration of Human Rights is a landmark document in human rights history.
The document's preamble states, "Whereas the recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foundation of
freedom, justice, and peace in the world". 8 The document outlines several liberties and
fundamental democratic principles. According to Article 21 of the Universal Declaration of
Human Rights9,

3
Article 326, INDIA CONSTITUTION.
4
Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691.
5
Rajbala v. State of Haryana, (2016) 2 SCC 445.
6
People's Union of Civil Liberties v. Union of India, (2003) 5 SCC 399.
7
Desiya Murpokku Dravida Kazhagam v. Election Commission of India, (2011) 4 SCC 224.
8
Universal Declaration of Human Rights, Preamble, (1948) [Link]
declaration-of-human-rights
9
Universal Declaration of Human Rights, Article 21, (1948) [Link]
declaration-of-human-rights

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 a) You have the right to participate in the government of your country, either directly or
through representatives of your choosing.
b) In his country, everyone has the right to equal access to public service.
c) The will of the people is the foundation of government authority; this will shall be
conveyed in periodic and genuine elections held by universal and equal suffrage and
by secret ballot or equivalent free voting procedures.

The International Covenant on Civil and Political Rights is one of the internationally
accepted documents that also addresses human rights; its preamble states, 10 "Considering
that, in accordance with the principles proclaimed in the United Nations Charter, recognition
of the inherent dignity and of the equal and inalienable rights of all members of the human
family is the basis of freedom, justice, and peace in the world." Article 25 of the International
Covenant on Civil and Political Rights 11 states that every citizen shall have the right and
opportunity, without any of the distinctions listed in article 2 and without unreasonable
restrictions:

a) To participate in the management of public affairs, either directly or through

representatives freely chosen.
b) To vote and be elected in genuine periodic elections held by universal and equal
suffrage and by secret ballot to ensure the free expression of the electorate's will.
c) To have general equality of access to public service in his country.

In consideration of human rights, even this internationally acknowledged document

emphasises the significance of voting rights. The inclusion of these rights as human rights
merely reflects the fact that the right to vote is a human right in a democratic country,
implying that it is more important than the elected government as a whole. When a
government chooses to be democratic, it must recognise that it does not have the authority to
choose for the people before the people choose them. In the context of human rights, the fact
that the right to vote has been deemed an essential aspect to be considered internationally
demonstrates how far-reaching their significance is. As a result, the right to vote is something
that should only be restricted in a reasonable and objective manner, as it would directly

10
International Covenant on Civil and Political Rights, Preamble, (1976) [Link]
mechanisms/instruments/international-covenant-civil-and-political-rights
11
International Covenant on Civil and Political Rights, Article 25, (1976) [Link]
mechanisms/instruments/international-covenant-civil-and-political-rights

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interfere with human rights.12 To deny these rights must be permissible under the law and to
the extent that they are being denied.

IV. DIFFERENT NATIONS REGARDING THE ABILITY TO VOTE FOR PRISONERS

Regarding the voting rights of prisoners, each nation governs such rights in a unique manner.
There are countries that grant prisoners the right to vote regardless of the fact that they are
incarcerated and deprived of numerous other rights. There are also nations where such
restrictions on prisoner’s voting rights are selective. Also, in some countries, prisoners are
denied the right to vote even after they have been released. Thus, the concept of the right to
vote is governed by a broad range of discretionary powers of their particular government.
How a country responds to particular statutes and deals with particular rules and restrictions
is heavily influenced by its customs and domestic jurisprudence, or the manner in which law
was taught, developed, inherited, and applied. Consequently, the approaches vary with the
government.

In 2012, BBC produced a report that discusses prisoners' voting rights in European nations.
The report identified 18 European nations that grant prisoners full voting rights. 13 Since the
introduction of universal suffrage following the fall of the Iron Curtain, there have been no
efforts to restrict voting rights in Albania, regardless of criminal history. In Bosnia and
Herzegovina, prisoners can vote unless their crimes are related to the conflict that followed
the collapse of Yugoslavia. Croatia, the Czech Republic, Denmark, Finland, Latvia,
Lithuania, Macedonia, Montenegro, Serbia, Spain, Sweden, Ukraine, and Switzerland are a
few additional countries where all prisoners have the right to vote. 14 In countries such as
Bulgaria, Cyprus, and Romania, magistrates have the discretion to determine whether a
prisoner can vote or not. In Bulgaria, judges can completely revoke a prisoner's right to vote
if he is sentenced to ten years or more, and even if the sentence is less than ten years,
prisoners can still lose their right to vote if the judge so decides, but it can be restored after a
maximum of twenty years.15 When it comes to France, they have a complicated set of rules
where such rights can be revoked based on the gravity of the offender's crime. 16 Thus,
prisoners do not forfeit their rights simply by being incarcerated; rather, the denial of rights is

12
Felony Disenfranchisement: A Pertinent Issue in the Election Season 5 Center for Advanced Studies in
Human Rights 2, 2-3 (2018)
13
Prisoners Vote by European Countries, BBC News, (April 26, 2023, 15:02) [Link]
20447504
14
Id.
15
Id.
16
Supra at 13.

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an additional penalty imposed with the sentence, which need not be mandatory for every
prisoner. Germany, Norway, and Portugal are also very selective when it comes to restricting
prisoner's rights, as crimes that target the government or are heinous in nature and affect the
public at large are taken into account before imposing such restrictions on prisoners' voting
rights.17 And a similar concept of selective restrictions is utilised in Italy and Greece.

Regarding granting prisoners, the right to vote, Slovenia and Ireland hold extremely liberal
views. Where in Ireland such a privilege is exemplary because it was granted without the
public's collective request. The right existed without controversy, and as a result, the country
took the rights of humans very seriously, learning from the best practises around the globe,
including the right to vote.18 Countries like Iran, Israel, and Pakistan also give prisoners the
right to vote in elections. South Africa, Ghana, Kenya, and Botswana all allow their captives
to vote in elections on the African continent. 19 Countries such as the United Kingdom, New
Zealand, and Australia have selectively restricted the voting rights of their prisoners.
Australia has limited it to years of imprisonment; those who are incarcerated for a minimum
of three years are ineligible to vote.20 In the United States of America, prisoners forfeit their
right to vote even after their release.

These distinctions are based on the beliefs that prisoners have violated the social contract
and, as a result, have chosen to be excluded from society; consequently, civil death should be
a component of such punishment, as inclusion on the polling system would compromise the
integrity of the vote. These nations and their citizens believe that prisoners are morally
unacceptable because they have been convicted of crimes that have been punished and are
therefore a threat to society; therefore, neither the government nor the government feel
comfortable granting prisoners the same rights as other citizens. While liberals believe that
the concept of civil death is outmoded in comparison to emerging human rights because
liberal countries view human rights from the perspective of reasonably restricting them and
not from the perspective of the convicted, conservatives argue that the social contract that a
country has with its citizens cannot be negotiated and democracy as a concept cannot be
taken for granted.21
17
Id.
18
Cormac Behan, Learning to Escape: Prison Education, Rehabilitation and the Potential for Transformation, 1
Jour. of Pri. Edu. 20, 22-23 (2014).
19
Abebe, Adem Kassie, In Pursuit of Universal Suffrage: The Right of Prisoners in Africa to Vote, 46 CILJ of
Southern Africa 410, 418 (2013).
20
Australian Electoral Commission: [Link]
21
Behan, Cormac, Citizen Convicts: Prisoners, Politics and the Vote, Manchester University Press, United
States (2015).

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In the case of Hirst v. UK22 before the European Court of Human Rights, the British
government argued that convicts are individuals who have forged their duties and violated
the social compact, and that they should be barred from participating in government. By a
vote of 12 to 5, the Court determined that Article 3 of Protocol No. 1 (the right to democratic
elections) had been violated.

Therefore, based on the above considerations from different parts of the world, we can
conclude that the fact that prisoners are supposed to be denied the right to vote is not
universal, as there are countries that take different stances, either by selectively denying
prisoners the right to vote based on specific rules followed in their country, or by granting
them the right without any restrictions.

V. PRISONER VOTING RIGHTS IN INDIA

The ability to vote is a constitutional provision for Indian citizens. It is an absolute right
unless statutory provisions state otherwise. This privilege has been granted by the Indian
Constitution's Article 326. However, the same freedom is not absolute in India. Under the
Representations of the People Act of 1951, the right to vote is also codified as a statutory
provision. The Act specifically addresses elections and the rules and regulations that must be
followed during the conduct of elections. The primary purpose of the Act is to ensure that our
nation holds free and fair elections. The Act supplements Article XV of the Constitution. The
Act includes candidates for positions in each state's respective house of parliament or houses
of legislature, as well as provisions for qualifications and disqualifications for those
positions. The act also addresses voter qualification and disqualification. Consequently, this
act specifies a category under which qualified voters are tallied.

Section 62 of the Representations of the People's Act, 1951, addresses the Right to Vote, and
subsection (5) asserts that,

"(5) No person shall vote in an election if he is confined in a prison, whether under a

sentence of imprisonment, transportation, or otherwise, or is in the lawful custody of
the police: Provided, however, that nothing in this subsection shall apply to a person
subjected to preventive detention under any law currently in effect."23

Article 326 of the Indian Constitution grants citizens the right to vote. This section restricts
that right. Consequently, this provision prohibits prisoners serving a sentence or even
22
Hirst v. United Kingdom (No 2) ECHR 681.
23
The Representation of People Act, 1951 (India)

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awaiting trial from participating in elections. The requirements for voting are so general that
people are sometimes denied their rights without committing a serious crime.

The Economic Times reported in 201924 that approximately 900 million Indian citizens were
eligible to vote in the Lok Sabha elections, while approximately 4 lakh Indian citizens were
denied the right to vote under Section 62(5) of the Representation of the People Act (RPA).
These citizens are prisoners.25 Although some of these 4,000,000 individuals were
undergoing trials, they were all kept under the same aegis. India is one of the few nations that
does not explicitly prohibit such restrictions on the right to vote, and as a result, a
fundamental right to vote has been compromised. Under the laws and values of a number of
nations, the right to vote is regarded as a fundamental human right and, as such, is either
granted without any restrictions or is restricted for those who pose a genuine threat to society.

To establish the voting rights of detainees, it is necessary to discuss who, according to the
law, falls within the definition of a prisoner. According to Section 3 of the Prisoner's Security
Act of 1894, a criminal prisoner is one who has been committed to custody under the writ,
warrant, or order of a court or authority exercising criminal jurisdiction, or by order of a
court-martial, while a civil prisoner is one who has not been so committed. 26 Consequently, it
is easy to conclude from the definition that a prisoner is essentially any person behind bars
who is either suspected of committing a crime and is therefore on trial, or who is presently
serving a sentence for any illegal act.

In the case of Union of India v. Anukul Chandra Pradhan,27 the Supreme Court of India
upheld the constitutionality of section 62 of the Representation of the People Act in two
ways. The court stated, first, that the Right to Vote is not a right granted by Article 14 of the
Constitution and, second, that the Right to Vote may be subject to certain limitations imposed
by the legislature; such a right is not a fundamental right under the Constitution, but a
constitutional right; therefore, Section 62(5) is constitutionally valid and does not undermine
the Constitution's fundamental structure. In this ruling, the court stated unequivocally that
denying prisoners the right to vote does not contravene Article 14 or Article 21 of the
Constitution. In the case of Praveen Kumar Chaudhary v. Election Commission of India,28 the

24
Economic Times (2019): “Indian Voter Population is 900 million”, (May,
2023) [Link]
25
Election Commission of India (2019): “Handbook for Observers”, (May,
2023) [Link] handbook-for-observers-march-2019/
26
The Prisons Act, 1894, (India)
27
Anukul Chandra Pradhan v. Union of India, (1997).
28
Praveen Kumar Chaudhary v. Election Commission of India, (2020).

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petitioners argued that there is no actual distinction between those who are in prison, those
who have been granted bail, and those who have been released from jail. Second, Section
62(5) of the Representation of the People Act prohibits a person from voting, but not from
electing. This means that a prisoner can contest an election, but cannot vote if he is
incarcerated. In addition, the petitioner asserted that this distinction violates Article 14 of the
Constitution and its fundamental structure. In its ruling, the supreme court determined that
the Right to Vote per se is neither a fundamental nor a constitutional right; rather, it is a
common law right granted to the people of India through statutes. The court also noted that
the right to vote is subject to certain restrictions; therefore, Section 62(5) does not contradict
any of the petitioner's arguments.

In light of the aforementioned rulings, it is simple to conclude that neither the legislature nor
the judiciary are willing to accept that the prisoner's right to vote is subject to human rights as
such. The right to vote is fundamental to democracy; without it, the very concept of
democracy becomes obsolete. It is essential to remember that such restrictions may be
necessary for establishing a sense of justice among the populace, but putting prisoners behind
bars is a punishment, and denying them the right to act as a legitimate citizen undermines the
concept of democracy in the country.

VI. CONCLUSION
Examining how the significance of the right to vote varies in different countries and
constituencies. The ability to vote has been the cornerstone of democratic societies, and as
such, it has been recognised as a human right under applicable international law. India
deprives prisoners of this right in its entirety, whereas other nations impose selective
restrictions on the same. Prisoners are members of society who were unable to observe social
norms and are therefore excluded from society. When it comes to crime, even punishments
are based on the severity of the crime, and murdering a person constitutionally but not
literally is something that is carefully evaluated and not kept on the same platform arbitrarily.
Such privileges may be restricted based on their gravity. There are many countries that have
successfully granted all prisoners the right to vote. However, in a country with such a large
population that it controls even a small portion of the country, such freedom would result in a
great deal of chaos, which is why the fact that a country can opt for a selective ban on the
right of prisoners should never be disregarded.

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