Meghalaya, Nagaland, and Tripura would be concluding elections by the end of February. Although a share of the population in these states has been denied their suffrage. The Representation of People’s Act, Sec 62 (5) imposes a blanket ban on those who are ‘confined’ in jail or are in the lawful custody of the police. The NCRB Prison Statistics of 2021 gives a glimpse of the bleak condition of prisons in India. In Meghalaya 79.5% are undertrial prisoners, Nagaland has 65.2% and Tripura has 57.9%. On top of it, prisons in Meghalaya are heavily crammed, soaring above 160.1% of their maximum occupancy.
According to the report, the prisons in India are overburdened with an occupancy rate of 130.1% in the year 2021. With around, 5,54,034 prisoners lodged in different jails where the maximum capacity is 4,25,609. Out of the total number of prisoners, a fraction of the prison population is convicted by law and the rest crammed in prisons are undertrial prisoners. The Prison report for 2022 is awaited but it is presumed that the situation has only deteriorated over the year since no robust measures are taken.
The 9th of December 1946, was the first time the Constituent Assembly met to lay down the foundation of the Constitution. In the Constituent Assembly meeting, Jawaharlal Nehru committed that ‘we are achieving democracy and nothing less than a democracy’. The Constituent Assembly laboured for years to bring a draft which ensures democracy in its veracious form. In 1950 a herculean task was achieved as the Preamble of the Constitution stated the core values of democracy by committing to the ideas of democracy and republicanism.
Though the Constituent Assembly is alleged to be aristocratic that lacked a mandate from the masses and was a rip-off of the Government of India Act of 1935. The discussion on the universal adult franchise was initiated as early as April 1947 and the preparation of the first electoral draft roll on the basis of the adult franchise had begun in September 1947. Unlike the provisions of the GOI Act that had set restricted electorate and qualifications based on literacy, property and more for those who can vote. This summed up around one-fifth of the population then. The dedication to ensuring a universal adult franchise added to the spirit of democracy. Along with this, it was a significant departure from colonial practice vis-à-vis the GOI Act.
The Constituent Assembly strived that the real authority resided in ‘We the people’. Having a vision document was a tedious task but the real difficulties were in its implications to ensure political, social and economic justice. Thus, the people of the country were enshrined with a constitutional right under Art.326 to vote and contest elections. The right was further detailed through the Representation of People’s Act, U/S. 62. The said provision is drafted negatively and makes express provisions to acknowledge who can vote and espouses the archaic notion of ‘civil death’.
Though the right to vote is an essential tenet of any democracy. In India, the right remains a statutory right and not a fundamental right. Since the right to vote is not covered in Part III of the Indian Constitution, part detailing the fundamental rights. The same has been reiterated by the judiciary on several accounts that the right to vote cannot be construed as a fundamental right. Though this could have severe implications. It was pointed out by Justice Jasti Chelameshwar in the privacy case pertaining to AADHAR in 2017 that the right to vote shall be a fundamental right. His apprehension was that the right to vote could be stripped by a mere amendment to the statute since it is not guarded. The concern, albeit dystopian, was genuine nonetheless.
The provision surrounding the right to vote in the statute is an arbitrary one and goes against the principles of criminal justice in India. The presumption of innocence until proven guilty is the foundation of the Indian criminal justice system. However, the provision of the RP Act subsumes the principle and espouses an arbitrary restriction upon the undertrial prisoners or the ones who are in the lawful custody of police to vote.
The statutory restriction leads to double victimisation of the undertrial prisoners who are languishing in overcrowded jails. And since the right to vote is not a fundamental right according to the black letters of the law, the right of the undertrial prisoner to vote is actively abridged. The biggest number of undertrial prisoners in jails are from the marginalized section of society who are unable to bear the legal expenses. Such restrictions upon the exercise of their political rights deprive them of participating in the politics of their country. Whereas the tenets of Indian criminal justice dictate an adequate representation of those who might seem guilty. The prevailing structure impedes the basic foundation of the Indian criminal justice system.
Regarding the impugned provision, a petition has been filed in the apex court to strike down the provision in the RP Act of 1951. The Petitioner contends the operation of a blanket ban as it lacks the criteria of classification based on nature of crime and duration of the sentence. The Petitioner pleads the lack of classification as anathema to the fundamental right under Art.14.
The Petition was taken up by the apex court and notice has been issued to the stakeholders seeking a reply from the Union of India, the Ministry of Home Affairs and the Election Commission of India. The petition is at its embryonic stage and could be listed on 27th February 2023. Though it is not the first time a petition has been filed in the apex court regarding the same. In Pradhan vs Union of India, the sentinel of democracy had dismissed the petition and held that suffrage is subjected to limitation under the statutory provisions.
The matter at hand is in a toss-up situation considering the past precedent(s). Though, in the context, in 2023, 9 States would be electing their representatives. Considering the gravity of the situation the matter needs to be expedited for urgent relief. However, merely striking down or omitting the particular provision of the RP Act would not be a desired relief. To ensure the commitments of democracy wherein the spirit of republican democracy lies with the sovereign people. The right to suffrage must be nominated for inclusiveness. The idea of classification of the nature of crime or any such criteria would be detrimental at large.
The political rights are sine qua non to the ethos of democracy. Reminiscing the idea of ‘nothing but democracy’ right to vote and contest elections shall be made a fundamental right under the connotation of life and liberty. To achieve the true republican spirit foretold by the founding fathers of Indian democracy, political justice must be ensured.
Rishav Sharma is a lawyer based in Delhi.