With the general elections around the corner, nearly 4.3 lakh people in India will be forcibly denied their right to vote. These are undertrial detenus in Indian jails, their criminality far from being proved. This is unfair
By Sujit Bhar
The general elections are around the corner. This will be a great show of Indian democracy and the right of the people in electing their favourite party to power. Yet, within the massive 960 million-strong electorate of the country exists a block of around 4,30,000 people who will not be allowed to press the button on the EVM machine because they are under detention. Not that they have been convicted of a crime—these are undertrial prisoners and their “crimes” have not been proven.
As in most cases in India today, law enforcement authorities use provisions of several old and new laws to pick up and detain people just on the suspicion of a crime, with no logical or legal proof whatsoever.
Among all detainees—a total of 5,54,034 as on December 31, 2021—in various jails across the country, the number of undertrials and detenus were 4,27,165 and 3,470, respectively. While the number convicted by a court accounts for just 22.2% of the total, the undertrial inmates and detenus comprise a massive 77.1% and 0.6%, respectively.
This number keeps rising. From 2020 to 2021, there was a rise of 14.9% in the number of undertrial prisoners. As new restrictive laws are enacted, the number of detainees grows. Add to that the laggard and inefficient legal system that straddles India, creating oceans of pendency in courts, and the trials and the hearings just go on and on, year after year, sometime beyond a decade. These are real issues; these are issues that have taken India from a fledgling, independent state to a slouch and a hunchback, already overburdened with issues that have nothing to do with humanity or progress.
There has been an actual instance when, after over a decade of having been incarcerated as an undertrial, a person had to be released, just because the courts finally found that he was innocent and had been wrongfully picked up by the police. He wasn’t compensated, nobody bothered about his lost youth, he wasn’t told what happens to the many years he has not been able to be a part of a productive society, or the years he has not been able to cast his vote to select a government of his choice, simply because of the sheer incompetence of our legal and justice system.
The man left the cell ever so much poorer than he was before, in his mind and in funds. His trust was lost and a positive-minded vote was lost to the country. At last count, there are nearly 4.3 lakh people condemned to complete anonymity, virtually rejected by the authorities.
The voting law
The Indian Constitution says that all Indian citizens above the age of 18 years who have registered themselves as voters are eligible to vote. These individuals can vote in national, state, district as well as local government body elections. The Constitution also says that no individual can be detained or prevented from voting, unless they fulfil the criteria for disqualification.
However, there is the caveat. The following are the rules, as laid down by the Constitution regarding disqualification of voters from the election process:
Individuals who are convicted of offences committed under Section 171E (which deals with bribery) and Section 171F [which deals with personation (accepted legalese for “impersonation”) or undue influence at an election] of the Indian Penal Code are disqualified from participating in elections.
Those convicted of offences under Section 125 (which deals with various electoral offences), Section 135 and Section 136 of the Representation of People’s Act face disqualification from elections.
If an individual votes in more than one constituency, his vote is disqualified.
The issue is that even if one is picked up by the police, and he/she is accused of such acts and detained, whether the police is able to prove his/her guilt or not, the person is forcibly removed from the entire election process. If the arrest has been a political one, or a vengeful one, or an act of sheer incompetence on the part of the law enforcement authority—cases involving many restrictive acts, such as the UAPA and PMLA are aplenty these days—then the person loses a large section of his/her productive life, as well as her place in society.
Here are some more rules regarding disqualification of voters:
Under Section 62(5) of the Representation of the People Act, 1951, individuals in the lawful custody of the police and those serving a sentence of imprisonment after conviction cannot vote. Undertrial prisoners are also excluded from participating in elections even if their names are on the electoral rolls.
Only those under preventive detention can cast their vote through postal ballots.
The law itself gives the police an unnatural advantage.
The arguments in vogue against this strange action of the law is not just that it disenfranchises a large segment of the population, but that denying jail inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values.
That is the philosophical angle to it. There are more glaring issues that need to be dealt with. Even after a person has been convicted he/she can vote if he/she is out on bail. The obvious question is, why is the same right denied to an undertrial who is not yet found guilty of a crime by a court of law? The prevalent situation is that detainment in civil prisons is unlike imprisonment for crimes.
There have been instances in India of criminals who are being tried for heinous crimes, fighting elections from jail. It is only for the common citizen that strict rules apply. The entire situation has become a farce.
It is only recently that the Supreme Court has decided to examine a petition challenging a provision in the election law that imposes a blanket ban on undertrials, persons confined in civil prisons and convicts serving their sentence in jails from casting their votes. However, by the time the apex court delivers a verdict on this, the general selections are likely to be over.
The top court also needs to look into the fact that the ban lacks reasonable classification based on the nature of the crime or duration of the sentence imposed unlike in countries such as South Africa, United Kingdom, France, Germany, Greece, Canada, etc.
This lack of classification is anathema to the fundamental right to equality under Article 14 (right to equality).
It is time the issue is studied in detail and some positive action is taken.