2019082

5 year

B.A., LL.B. (Hons.)

TOPIC:

PRISONER’S RIGHT TO VOTE

To

PROF. ARUNA KAMILA

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY NYAYAPRASTHA “, SABBAVARAM,

1
 ACKNOWLEDGEMENT

I have taken endeavors in this undertaking. Nonetheless, it would not have been conceivable without the thoughtful help a lot of many people. I
might want to stretch out my earnest gratitude to every one of them.
I am exceptionally obligated to Prof. ARUNA KAMILA Mam for his direction and consistent management just as for giving vital information
with respect to the venture and additionally for their help in completing the undertaking. I might want to offer my thanks towards my family for
their caring co-activity and encouragement, which help me in completion of this task. My thanks and thanks likewise go to my companions in
building up the venture and individuals who have eagerly caused me out with their capacities

ASHRIBAD SAHOO

20
19082

2
Contents
INTRODUCTION............................................................................................................................................................................................................................. 3
Prisoners’ Right to Vote: Trends across the World........................................................................................................................................................................ 4
UNITED KINGDOM..................................................................................................................................................................................................................... 4
UNITED STATES.......................................................................................................................................................................................................................... 5
CANADA..................................................................................................................................................................................................................................... 6
AUSTRALIA................................................................................................................................................................................................................................. 6
Indian position............................................................................................................................................................................................................................... 8
United Nations and the Universal Right to Vote............................................................................................................................................................................ 9
Why Should India Give Voting Rights to Prisoners?....................................................................................................................................................................... 9
Voting Rights for Prisoners: The Way Ahead............................................................................................................................................................................... 11
CONCLUSION............................................................................................................................................................................................................................... 11

3
INTRODUCTION

In India, the debates around prison reforms and rights of prisoners have been exceptionally limited. Prisons in the advanced democracy have

been imagined as reformative care-giving institutions. In any case, the reality of prisons is that there is overcrowding; inhuman living conditions;

a dearth of basic needs such as access to food, medical treatment and cleanliness; absence of accountability and transparency of administration,

targeting and surveillance, torture and even death; least of opportunities of aptitude building or recreation. For what reason is this so? For one,

society's understanding of the treatment of prisoners is being profoundly influenced by the fear related to crime control and increasing targeting

and otherization of people from certain socio-political affiliations. Being tough on crime through severest disciplines is the new standard for

good governance. Prisoners form a segment of the society which is avoided, isolated and only sometimes talked about. Making matters more

awful is the fact that no report declares mandatory rights of prisoners, leaving it up to the changing governments and changing dispositions of the

society. According to the 2016 arrangement, the latest one, distributed by Government of India regarding prison management in the form of

Model Prison Manual 2016, a "Viewpoint" chapter from the manual states: 1

"India shares the universally held view that a sentence of imprisonment would be justifiable only if it ultimately leads to the protection of society

against crime. Such a goal could be achieved only if incarceration motivates and prepares the offender for a law-abiding and self-supporting life

after his release. It further accepts that, as imprisonment deprives the offender of his liberty and self-determination, the prison system should not

be allowed to aggravate the suffering already inherent in the process of incarceration." This point of view is an aftereffect of various decisions

articulated by the Supreme Court of India in the last several decades, in which the prison administration has been reprimanded regarding the

inhuman living conditions in prisons and animal-like treatment of prisoners. The United Nation's Standard Minimum Rules for Treatment of

Prisoners also call for the dignified treatment of prisoners leading to their reintegration to into society and no further infliction of pain other than

the imprisonment itself. The Supreme Court of India has made it clear that a prisoner should be treated with dignity and as a legal citizen with

rights, regardless of their status as a detainee, undertrial or convict. "Are prisoners’ people? Truly, obviously. To answer in the negative is to

convict the nation and the Constitution of dehumanization and to repudiate the world legal request, which currently perceives rights of prisoners

in the International Covenant on Prisoners' Rights to which our nation has marked assent". (Supreme Court of India in Sunil Batra v Delhi 7

Administration 1979) However, the prison administration in practice doesn't adhere to such a line of thinking. The viewpoint of a prisoner's

reform, rehabilitation and re-integration into society has not been given idea and acceptance.

As laid down in the Mulla Committee report, the rights of prisoners are broadly categorized as right to human dignity, right to basic minimum

needs, right to communication, right to access to law, right against arbitrary prison discipline, right to meaningful and gainful employment and

right to be released on the due date. However, to satisfy the point of view of prison management, that is, to think about a prisoner as an

individual with rights and to run after their rehabilitation and reintegration in the society, as laid down in Model Prison Manual and as earlier

articulated by the Supreme Court, it is important to broaden the skyline of the rights of prisoners. While in United States, the right to decide in

favour of prisoners had resurfaced after a nationwide strike by prisoners in 2018 (Pilkington 2018) and conversations drove by Bernie Sanders,

one of the Democratic candidates for 2020 Presidential election (German 2019). In India, this issue has chances of being debated since three law

understudies have recorded a public interest litigation in the Supreme Court against segment 62(5) of the Representation of Peoples Act, 1951

(Bose 2019). This law disenfranchises any Indian citizen confined in prison. The issue of right to decide in favour of prisoners has only

sometimes been examined in India. This article will introduce the patterns of prisoners' right to cast a ballot in different nations, the arguments

used to deny this right, and make a case for why India should grant its prisoners the right to cast a ballot. 2
1
www.scconline.com
2
www.laawsenate.com
4
In March 2019, prisoners of Jaipur Central Jail were on negative mark against their solitary confinement, also demanding the setting up of a

grievance box and a visit by district judges (Hindustan Times 2019). Both the demands are mandatory according to the Supreme Court of India.

These prisoners despite their legitimate demands were beaten up, tortured and threatened with "critical results." In addition, they were charged in

a case of causing hurt and using criminal force against government officials, that is, prison authorities in this case. Similarly, women prisoners of

Byculla Jail rebelled and caused uproar to feature murder of their co-prisoner Manjula Shetty by prison authorities (Mangle 2017). If it wasn't for

their strike, Manjula's case would never have come around. However, despite the legitimate worry that the women prisoners wanted to feature,

they were charged of rioting, unlawful assembly, utilization of fire and explosives, and so on These are only two later and known instances.

Prisoners in India as well as around the world since the time have been going on dissent strikes against inhuman prison conditions or to demand

reforms. And yet, such acts have always been criminalized.

Prisoners’ Right to Vote: Trends across the World

UNITED KINGDOM

The European Court of Human Rights in Hirst vs. United Kingdom (No. 2) articulated in March, 2004, has fundamentally changed the situation

in the United Kingdom. That case concerned the translation of Article 3 of the First Protocol to the European Convention on Human Rights.

according to U.K. law, a prisoner going through sentence is lawfully unequipped for voting at any parliamentary or then again local government

elections. The legitimacy of that provision was tested in Hirst vs. Attorney General. The issue was first heard by the homegrown English Court;

Lord Justice Kennedy saw that the impact of Article 3 of the Convention was that, if a prisoner was to be disenfranchised, it should be, "chasing

a real aim". His Lordship found that the topic of the authenticity of the points in the case was best left to the legislature. At the point when the

issue went before the European Court of Human Right, the court, containing seven judges, concurred that the option to cast a ballot was

dependent upon exemptions that were forced in quest for a real point, yet held that the English disappointment provision abused Article 3 of the

European Convention. The Lord Chancellor had said: The ruling of the human rights court against U.K. laws banning prisoners from elections

does not mean that all inmates will get the right to vote, The European Court of Human Rights in Strasbourg that banning ex-inmate John Hirst

from the polls had breached his rights to free elections. The essential human option to cast a ballot ought not be denied to any prisoner no mater

how grievous a crime he has perpetrated. Mr. Hirst had first tested the vote boycott in the High Court, which dismissed his supplication on the

ground that the Portrayal of Peoples Act, 1983 was contradictory with the Human RightsConvention. Notwithstanding, the Strasbourg court, by

a lion's share vote of 12 to 5, managed in his courtesy. The Court expressed that that his privilege had been disregarded under the Convention on

Human Rights, to which Britain is a signatory, and which ensures the "option to free elections". As per the judges of U.K., this applies similarly

to prisoners, portraying the voting boycott as a "blunt instrument" which influenced a huge class of individuals in a prejudicial manner.

According to the Director Juliet Lyon of Prison Reform Trust (PRT) Prisoner should be given every opportunity to pay back for what they have

done, take responsibility for their lives and make plans for effective resettlement and this should include maintaining their rights to vote.18 With

regard to the second object the Human Rights Court followed the reasoning of the Canadian Supreme Court in Sauve vs. Canada (Chief

Electoral Officer)19 With respect to the first objective of promoting civil responsibility and respect for the law, denying penitentiary inmates the

right to vote is more likely to send messages that undermines respect for the law and democracy than enhance those values. The legitimacy of

the law and the obligation to obey the law flows directly fro the right of every citizen to vote. To deny prisoners the right to vote is to lose an

important means of teaching them democratic values and social responsibility.3

3
www.lawsenate.com
5
UNITED STATES

In the United States the prisoners don't reserve the privilege to cast a ballot. The driving case, Richardson vs. Ramirez20 was chosen in 1974.

The Supreme Court's choice maintained a provision under the laws of California which disenfranchised 'people sentenced for an "notorious

crime". It is significant that this provision applies to the prisoners going through sentence as well as the individuals who have effectively finished

their sentence and have been delivered. The greater part choice depended on the Fourteenth Amendment to the United States Constitution Article

which mulled over those prisoners who submitted an offense of 'resistance or then again other crimes' strength be excluded from voting. The

lion's share respected the question as one for the legislature, and noticed: “Pressed upon us by the respondents, and by amicus curiae, are

contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that

he is returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means

discount these arguments if addressed to the legislative forum, which may properly weigh and balance them against those advanced in support of

California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the

view, which they advocate, is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately

come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.”

A sensible breaking point is advocated in a free and democratic society. The question under the steady gaze of the court was to choose was

whether disappointment of prisoners could be viewed as a sensible limitation. The contention put by the state was that the legislature was

obliged, "to keep offset with the contending cases of detainees to cast a ballot with the cases of the society everywhere to protect the sacredness

of the establishment and to authorize offenders for disregarding the social contract." The following point contended by the state was the need to

safeguard the sacredness of the establishment dependent on "the necessity for a liberal majority rules system to have a 'good and dependable

populace', which will intentionally maintain the laws or at any rate the vast majority of them." 4

The Courts of Appeal dismissed the entirety of the Crown's expressed goals, expressing: “If the purpose is to ensure a decent and responsible

citizenry, the legislation is both too broad and too narrow. It is too broad in that the legislation catches not only the crapulous murderer but also

the fine defaulter who is in prison for no better reason than his inability to pay…..With regard to the alleged objective of punishment, the

legislation bears no discernible relationship to the quality or nature of the conduct being punished. Indeed, on a reading of the text of s. 51 (e) it

is difficult not to conclude that, if it is imposing punishment, such punishment is for imprisonment rather than for the commission of an offence.”

CANADA

Since 1982, the Canadian Charter of Rights and Freedoms contain an express option to cast a ballot. A citizen of Canada has the option to cast a

ballot in a political race and to be equipped for participation in their authoritative houses, subject to sensible limits endorsed by the law. In

Barczewski vs. The Queen, this option to cast a ballot and as far as possible to which it is subject was being referred to. Section 51 (e) of the

Canada Elections Act which didn't permit the option to cast a ballot was tested, every individual going through discipline as a detainee in any

penal establishment for the commission of any offense was held invalid under Section 3 of the Charter. The alleviation looked for was allowed at

the first example. Another exclusion was presented by the legislature of Canada in reaction to the Bukowski position by setting up models,

which excludes a individual who is detained for a time of at least two years. This provision was tried in the 1995 case. The destiny of the case

was same as its archetype, and in the first example it was struck down as being in penetrate of Section 3 of the Canadian Charter of Rights and

Freedom. The Crown was effective in appeal to the Federal Court of Appeals, however at last the provision was held invalid by a proportion of

five to four in the Supreme Court of Canada. The minority see was that the case rested upon, "philosophical, political and social contemplations

which are not fit of logical proof". 5

4
www.quora.com
5
www.legalserviceindia.com
6
The minority hence presumed that the court ought to maintain the provision as constitutional in light of the fact that the social and political way

of thinking progressed by Parliament sensibly defended a restriction of the option to cast a ballot. The lion's share see given by Chief Justice was

in this way: “In 2002 the Supreme Court of Canada ruled out that the section of the Canada Election Act that prevented inmates serving sentence

of more than two years from voting in federal elections was against the Canadian Charter of Rights and Freedoms. All incarcerated electors may

now vote in Federal elections and referendums28 Presently, all prisoners in Canada are entitled to vote, and the Canada Elections Act contains

various provisions to facilitate the prisoners’ franchise. Near about 35,000 inmates in Canada became eligible to vote in 2006.”

AUSTRALIA

The Australian Constitution doesn't ensure universal suffrage. Australia has no limitation on prisoners' voting. The Constitution does explicitly

give assurance to the degree that those people who have or have obtained a option to cast a ballot in state elections, will not be kept from voting

in federal elections.2This provision might have had the impact of constraining the Commonwealth Parliament to recommend capabilities for

voters that were steady with most liberal of the identical state provisions. On one translation of S. 41 of the Constitution, the federal

disenfranchisement provision, since it implies to keep South Australian prisoners from voting at federal elections, would be invalid. This isn't; be

that as it may, the impact of the section as it has been deciphered by the High Court. Or maybe, the provision has been delivered out of date by a

High Court choice such that it applies just to the individuals who reserved an option to cast a ballot in state elections at the hour of organization.

Since the choice has since been reaffirmed, it appears to be far-fetched that the High Court would modify its view.

On the off chance that the Constitution is to have an orientation on prisoner disenfranchisement, it will be on the grounds that it contains some

applicable suggested right or inferred limitation on the authoritative influence of the Commonwealth. The content and structure of the Australian

Constitution incorporate provisions for an arrangement of representative government. Undoubtedly, as indicated by Justice Isaacs: 'the

Constitution is for the headway of representative government, and contains no word to adjust the essential highlights of that foundation'. This

prerequisite for representative government is achieved, in no little part, by the fact that Section 7of the Australian Constitution33, managing the

piece of the Senate, and section 24 of the Australian Constitution,34 accommodating the creation of the House of Representatives, both

necessitate that the individuals from those houses are to be 'straightforwardly picked by the individuals'. It is set up that those provisions dig in

the Constitution an arrangement of representative government. In Australian Capital Television Pvt. Ltd v. The Commonwealth, it was

acknowledged by the High Court that representative government requires freedom of communication on issues applicable to public affairs and

political conversation, and subsequently that such freedom was suggested in the Constitution. From one point, the act of voting may be viewed

as a definitive method of political communication, and subsequently it is questionable that an option to cast a ballot falls inside the

Constitutional ramifications examined in ACT v. The Commonwealth. It appears to be likely, in any case, that, given the express 'picked by the

individuals', the option to cast a ballot would itself be able to be straightforwardly suggested from the constitutional necessity for representative

government. Steady with the ramifications of an option to cast a ballot are the remarks of Chief Justice Mason: 'The very idea of representative

government and representative vote-based system implies government by the individuals through their representatives'.

As per Justices Deane and Toohey, 'the forces of government have a place with, and are determined from, the represented, in other words, the

individuals of the Commonwealth'. A Judge of the High Court, Justice Kirby, composes: 'it appears to me unmistakably questionable that, in

Australia, there might be an essential option to cast a ballot suggested in the content of the Constitution itself'. Any option to cast a ballot

inferred in the Constitution would not, notwithstanding, be inadequate. The Constitution unmistakably accommodates the Commonwealth

Parliament to enact regarding the capability of electors. Also, the term 'picked by the individuals' suggests two capabilities: that voters would

have, firstly, the capacity to settle on an important decision, and furthermore, that they qualify as 'individuals' of the Commonwealth or, on

account of the Senate, of the pertinent State. It may likewise be contended that the term 'picked by the individuals' should be fulfilled by not

7
exactly universal suffrage on the grounds that numerous individuals were avoided from the establishment, including, in numerous states, ladies,

and natives when the alliance appeared. In the event that that contention was to be acknowledged, at that point the Parliament's capacity to bar

citizens would be extremely wide undoubtedly.6 There are grounds, notwithstanding, to assume that the High Court may, in deciphering the

expression 'picked by the individuals' accord it a more contemporary logical setting: “The words ‘chosen by the people of the Commonwealth’

fail to be applied to different circumstances at different times and at any particular time the facts and circumstances may show that some or all

members are not, or would not in the event of an election, be chosen by the people within the meaning of these words in s. 24. At some point

choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be

determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member

can be described as chosen by the people of the Commonwealth. For instance, the long-established universal adult suffrage may now be

recognised as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be

described as a choice by the people.” Similar sentiments were expressed by a majority in McGinty41 by Justice McHugh. In Langer v. The

Commonwealth,42 Justice Gaudron expressed the view that: Notwithstanding the limited nature of the franchise in 1901, present circumstances

would not, in my view, permit senators and members of the House of Representatives to be described as ‘chosen by the people’ within the

meaning of those words in Sec. 7 and 24 of the Constitution if the franchise were to be denied to women or to members of a racial minority or to

be made subject to a property or educational qualification. If the Court adopted this approach, in determining what constituted a choice by the

people in contemporary terms, it might have regard to overseas domestic provisions, as discussed above, and also to relevant international laws

and principles.7

Indian position

The Preamble of the Constitution proclaims India to be a Democratic Republic. Democracy is the fundamental component of the Constitution

and it tends to be supported just through free and reasonable elections. Just free and reasonable elections to the different legislative bodies in the

nation can ensure the development of a democratic country. It is the loved advantage of the citizen to partake in the political decision measure,

which causes an individual to feel in a seat of intensity. India has received adult suffrage as premise of political decision to the Lok Sabha and

the state Legislative Assemblies. Each citizen who has arrived at the age of 18 years has a privilege to cast a ballot with no segregation. 8

The Indian courts often allude to international instruments on human rights while deciphering the importance and extent of legal provisions. The

advanced exertion towards what Winston Churchill called "enthronement" of rights of men started with the establishing of the United Nations.

Indian courts have acquiesced to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and

Cultural Rights (however not the discretionary protocol) on 27 th Walk 1979, subject to certain announcement that set out concerning how it

would apply certain provisions of the Covenants. Suspending people in judicial custody isn't unconstitutional. An individual who is in jail for his

own lead and is, in this manner, denied of his liberty during the time of his detainment can't guarantee equivalent freedom of movement,

discourse and expression. Limitations on voting of people in jail result naturally from his constrainment as an intelligent result of detainment.

The article is to get the individual with criminal foundation far from the political race scene and in this way, a provision forcing limitation on a

prisoner to cast a ballot can't be called unreasonable. Preventive detainment varies from detainment on conviction, or during the examination of

the crime, and similar grants for the different arrangement of the detune under preventive detention.48 In Anukul Chandra Pradhan vs

Association of India, the Supreme Court maintained the legitimacy of the provisions of section 62(5) of the Representation of Peoples Act,

6
www.scconline.com
7
www.lawsenate.com
8
www.quora.com
8
195150 on two grounds; firstly that Article 14 doesn't influence it, and also the Court noticed: “The right to vote is subject to the limitations

imposed by the statute which can be exercised only in the manner provided by the statute prescribing the nature of the rights to elect cannot be

made with reference to fundamental rights in the Constitution. The very basis of challenge to the validity of sub sec (5) of sec 65 of the Act is

therefore, not available and this petition must fail.” Section 62 (5) of The Representation of Peoples Act, 1957, suspends a individual to cast a

ballot in a political decision in the event that he is detained. Stipulation to Sub-section (5) cuts out an exemption for an individual subject to

preventive confinement under the law for the time being in power. The Court in this case held that the arrangement made isn't violative of

Article 14. It likewise doesn't violate Article 21 on the supposed ground that the limitation on prisoner's entitlement to cast a ballot keeps

nobility from getting life. In this way, characterization made for people in preventive confinement is sensible f India the option to move a freely

all through the area of India and Article 19 (1) (e) certifications to the citizen of India the option to live and get comfortable any part of India.

These rights are interrelated.9

These rights are, in any case, not total and they are liable to Article 19 (5) of the Constitution which gives that the state may force sensible

limitations on these rights by law in light of a legitimate concern for the general public or for the security of the interest of any planned clan. A

citizen has the privilege to move starting with one State then onto the next. He additionally has the freedom to move starting with one piece of

the State then onto the next. At the point when an offender is condemned to detainment he loses his entitlement to movement and habitation

because of such imprisonment in jail. In Sunil Batra vs. Delhi Administration, it was held that the limitation forced on a prisoner under Sec. 30

(2) of the Prisons Act, 189456 was not irrational as the limitation is forced keeping in view the wellbeing and security of the prisoners and the

jail, and the equivalent couldn't be treated as being violative of Article 19 (1) (d) of the Constitution.

It shows up from the conversation, that Supreme Court has discarded to give due respect to the provisions of Articles 325 and 326. Article 325,

doesn't reject participation on the ground of religion, race, standing or sex. Article 326 is identified with elections to the House of individuals

and State legislative assemblies to be on the adult suffrage. The option to cast a ballot is neither a custom-based law right nor a major right, and

it is likewise not absolutely a legal right by the same token. It is more meaningful as the Option to cast a ballot isn't an endowment of the

legislature yet moves from the Constitution. Free and reasonable political race has been announced essential component of the Constitution. 10

United Nations and the Universal Right to Vote

Article 21 of Universal Declaration of Human Rights (UDHR) gives that everyone has the right to take part in the government of their country,

straightforwardly or through unreservedly picked representatives. Further, International Covenant on Civil and Political Rights (ICCPR's) Article

25 states clearly that Each citizen will have the right and the chance, with no of the qualifications referenced in article 2 [i.e race, shading, sex,

language, religion, political or other opinion, national or social origin, property, birth or other status. and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, straightforwardly or through openly picked representatives;

(b) To vote and to be chosen at authentic occasional races which will be by universal and equivalent suffrage and will be held by secret ballot,

ensuring the free expression of the will of the electors. The rehashed weight on "everyone" and clear portrayal of potential differentiations, that

is, race, shading, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, plainly show that the

organizations viewed as directing the nations on human rights hold the right to vote as very nearly a natural right that can't be taken away by

governments or the general public. Additionally, the European Convention on Human Rights, the American Convention on Human Rights, the

African Charter on Human and People's Rights perceive everyone's right to uninhibitedly participate in appointment of governments (Adeb
9
www.lawsenate.com
10
www.legalserviceindia.com
9
2013). Also, the Standard Minimum Rules for the Treatment of Prisoners and The Body of Standards for the Protection of All Persons under

Any Form of Detention or Imprisonment, stress that detainees should be treated with inborn nobility, that detainment is for their change,

restoration and reintegration to the general public and thus detainees should proceed to participate in socio-political exercises.11

Why Should India Give Voting Rights to Prisoners?

The contentions against prisoners' right to vote can be excused on two significant grounds. To start with, repression because of imprisonment in

itself is a punishment and no extra punishment can be dispensed on the individual, and second the reason for jails isn't "punishment" in its actual

sense, however disavowal of liberty to reform, and set up the detainee to restore and reintegrate into the general public. The United Nations'

Standard Minimum Rules for Treatment of Prisoners, otherwise called the Nelson Mandela Rules, in 1955 had just characterized the reason for

imprisonment in Articles 57 and 58, and what treatment should be given to the prisoners in its Articles 60 and 61. Article 57 states that,

“Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from

the person the right of self-determination by depriving him of his liberty. Therefore, the prison system shall not, ... aggravate the suffering

inherent in such a situation.” Article 58 further states that, “The purpose and justification of a sentence of imprisonment or a similar measure

derivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure,

so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.” Article

60 states that, “(1) 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.” Article 61 further states that, “The treatment of

prisoners should emphasize not their exclusion from the community, but their continuing part in it… Steps should be taken to safeguard, the

rights relating to civil interests, social security rights and other social benefits of prisoners.” rules. Depriving a prisoner of his right to vote is an

additional punishment. A South African judge Arbour JA said (Mbodla 2002): “It is punishment for imprisonment rather than for the

commission of an offence.” India’s judicial pronouncement on prisoners’ rights have long stated that a prisoner retains all rights enjoyed by free

citizens except those lost necessarily as an incident of confinement (AIR 1978 SC 1514). Article 20(2) of our Constitution also clearly states that

nobody should be punished twice for the same act.” This extra punishment may exasperate the anguish, and damages the nobility of the detainee

as a human being and a citizen. As represented in Article 60 and 61, such a hardship isn't needed as a component of our penal framework on the

grounds that the point of imprisonment is to proceed with a detainee's advantage in common life teaching a feeling of obligation towards his

inevitable re-visitation of the general public as a "law-standing" and "self-supporting" citizen. Regarding other arguments that denial of right to

vote sends a signal to the law breaker from the society, European Court of Human Rights observed in Hirst v UK case (Chui 2007): “No

evidence to support the claim that disenfranchisement deterred crime... the imposition of a blanket punishment on all prisoners regardless of their

crime or individual circumstances indicated no rational link between the punishment and the offender.” When South African government in

Minister of Home Affairs v Nicro argued that “making provision for convicted prisoners to vote would in these circumstances send an incorrect

message to the public that the government is soft on crime,” Chief Justice of South Africa’s highest court commented that (Behan and Donnell

2008): "It could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image; nor could it

reasonably be argued that the government is entitled to deprive convicted prisoners of valuable rights that they retain in order to correct a public

misconception as to its true attitude to crime and criminals. And, if a government uses Right to Vote to enhance its public image, this is when the

sanctity of ballot box is actually violated and insulted." A Canadian court terming the government’s arguments as “vague and symbolic

objectives,” also stated (Behan and Donnell 2008): “The law which denied prisoners serving sentences over two years the vote in federal

11
www.scconline.com
10
elections was repugnant to the Canadian Charter of Rights and Freedoms.” “Right to vote is fundamental to our democracy and rule of law and

cannot be lightly set aside.” That it could not “permit elected representatives to disenfranchise a segment of the population.” Governments

involving white men for long were denying the right to vote to various areas of the society based on gender, race, shading and property. 12

This history is proceeding with today when voting rights of another segment of society, that is, prisoners or potentially lawbreakers, is being

denied by the individuals who are making the law. An empirical exploration study seeing voting patterns rising up out of three elections in

Ireland in the years 2008, 2009 and 2011 found that prisoners don't vote uniquely in contrast to the remainder of the populace what's more, levels

of electoral investment is lower because of non-enrolment as one significant explanation, yet, there is a high turnout among those enlisted to

vote. Meetings with these prisoners, during a similar examination study, revealed that prisoners invited the demonstration of their

enfranchisement, and furthermore trusted that all the more such demonstrations of their engagement with the society counting more

consideration from the political class will be attempted by the government (Behan 2014). An exceptionally away from of this abuse of intensity

has been seen in the US when Al Gore might have prevailed upon George Bush in Florida during 2000 Presidential elections if over 6,00,000

Floridians were not disenfranchised because of being ex-convicts. The US has long been condemned for its criminal disenfranchisement strategy

and history of racial discrimination (Behan and Donnell 2008). South Africa has also perceived the connection of voting rights with exclusion of

certain segments of society. The judge in the Minister for Home Affairs v Nicro case said: “In light of our history where denial of the right to

vote was used to entrench white supremacy and to marginalise the great majority of the people of our country, it is for us a precious right which

must be respected and protected.” India's criminal justice framework is also polluted with its record of preparing and eventually detaining more

quantities of Dalits, Adivasis, Muslims and the economically poor (Wire 2019). Denial of voting rights to prisoners is denying valuable vote

portion of these specific networks. Also, India is one of those not many nations who have been denying this right to its undertrial populace too.

Furthermore, in India's jail populace, a dominant part are undertrials. (Deccan Herald 2018).13

Voting Rights for Prisoners: The Way Ahead

Elections urge us to talk about our mistake and issues with the state of affairs in the nation, while likewise accepting the open door to lobby for

our demands. In every one of our strategies, the spotlight ought not simply be on counteraction, prevention and discipline of crime however

more critically likewise on the conditions producing crime and reintegration of the lawbreaker into the society. Refusal of voting rights drives

the prisoner further away from the society. A citizen without a vote in a democracy has no presence. This is clear in Indian country too, where

political race declarations scarcely notice any guarantees for the improvement of jail conditions or enactment. Prisoners are subject to others to

turn into their voice and raise issues for their benefit. Henceforth, one direct impact which prisoners' privilege to cast a ballot will bring is the

consideration from policymakers with respect to necessities of prisoners. It may still be a little populace when contrasted with the size of

different networks, and still, at the end of the day a good obligation would stand for vote searchers and resulting champs of capacity to be

responsive towards demands of the prisoners. Another significant qualification to remember is that laws are made and changed with various

governments, while rights have been revered as central. A crime today, may be lawful tomorrow. Thus, a privilege as essential as the option to

cast a ballot, ought not be reliant on the status of detainment or conviction. The expressions of a South African judge (Mbodla 2002) flawlessly

help us to remember the significant of vote and citizenship: “The vote of each and every citizen is a badge of dignity and of personhood. Quite

literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or

poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive

polity.”

12
www.legalserviceindia.com
13
www.scconline.com
11
CONCLUSION

The requirements of the Indian Constitution for representative government are open to be interpreted so as to protect the right of Indians to vote

in elections. The proposed provision to remove the right to vote from all prisoners serving a full-time sentence of imprisonment arguably

conflicts with the Constitutional requirement, and would accordingly, be liable to be held invalid if challenged in the Court. There are a variety

of ways in which enfranchisement of prisoners could be achieved in practice. Polling stations could be set up in the prisons or special votes

could be provided to prisoners. Prisoners are literally a captive population, living in a disciplined and closely monitored environment, regularly

being counted and recounted. The Election Commission should have little difficulty in ensuring that those who are eligible to vote are registered

and given the opportunity to vote, and achieving the objective of an easily managed poll on the respective Election Day.14

BIBLIOGRAPHY:
Websites:

1. www.lawsenate.com

14
www.legalserviceindia.com
12
2. Docs.manupatra.in
3. www.legalserviceindia.com
4. www.theindianlawyer.in
5. www.itatonline.org
6. www.quora.com
7. www.scconline.com

13