Srishti Gaur is a second-year law student at the National Law University, Delhi.
India’s 18th General Elections took place in April and May 2024, with millions exercising their democratic rights.1 Yet, amidst the clamor of the largest democracy in the world casting its vote, a silent fraction—prisoners—were excluded from exercising their choices.
Free and fair elections are basic tenets of democracy, and voting rights form their pivotal pillar. While India enshrines universal adult franchise under Article 325 of the Constitution of India, this ideal is limited by Section 62(5) of the Representation of the People Act, 1951 (“RPA”), which disqualifies any person who “is confined in a prison” from voting, including convicts, detainees, and undertrials.2 This raises the question of whether the disenfranchisement of prisoners is a legitimate restriction and whether a blanket ban preventing them from voting is a justifiable approach.
Proponents of prisoner disenfranchisement invoke the ancient concept of ‘civil death’ to argue that prisoners should be stripped of their rights of citizenship, including the right to vote.3 For instance, Peter Ramsay argues that disenfranchisement is a “proportionate punishment” as it is limited to the period of incarceration, and allowing prisoners to vote undermines the spirit of democracy, as, during incarceration, convicts cannot contribute to the “collective self-rule.”4
The Supreme Court of India adjudged the constitutional validity of Section 62(5) of the RPA in Ankul Chandra Pradhan v. Union of India, wherein the court noted that Article 14 of the Indian Constitution permits reasonable classification, provided that there is a reasonable nexus with the object of classification. Following this test, the court concluded that, first, the exclusion of prisoners from voting is required to prevent the criminalization of politics and to maintain probity in elections. Second, the court cited a “resource crunch,” reasoning that prisoner voting would pose logistical challenges, necessitating larger police forces and infrastructure facilities. Finally, the court noted that a person is in prison due to their own conduct, so they lack an equal claim to freedom of movement, speech, and expression as those not in prison.5
The argument for sanitizing the electoral process stems from moral concerns of preserving the purity of the ballot box, not democratic principles, relying on the presumption that the political community is inherently good and, thus, deserves “a virtuous citizenry.”6 This idea is contradicted by other parts of the law, as candidates with criminal backgrounds, including those in custody, can contest elections under Section 8 of the RPA, yet imprisoned individuals are excluded from voting.7 Moreover, the court failed to justify a blanket ban, as convicts of varying degrees of offenses are subjected to the same exclusionary practice. Additionally, the reasoning given by the court did not justify the disenfranchisement of undertrials who have not been convicted.
Notably, the European Court of Human Rights (“ECHR”) ruled in Hirst v. United Kingdom that a blanket ban on prisoners’ right to vote was contrary to the European Convention on Human Rights.8 Rebutting the government’s “civic responsibility” claim, the court elaborated on the proportionality principle, arguing that the provision impacted a wide range of offenders, ranging from those convicted of minor offenses to those of “utmost gravity.” Further, the court noted that the additional sanction deprives a convict of the fundamental right to vote, separate from their right to liberty. While restricting liberty may be necessary, disenfranchisement is not warranted for security or other considerations, thus holding the provision “disproportionate and without legitimate aim.”
In Minister of Home Affairs v. NICRO, the South African government argued that prisoners were disenfranchised due to costs and logistics. Their reasoning was refuted by the majority of the Constitutional Court on two grounds. First, there was no evidence given that the Election Commission could not arrange requisite resources. Second, incarceration was a disproportionate reason for prohibiting prisoners from exercising their democratic rights.9 While it is possible for India to provide evidence showing cost and logistical problems, the argument remains that logistical or financial constraints cannot justify the denial of the right. As Behan argues, the right to vote is the key to ‘democratic citizenship,’ and any restriction must be grounded in a compelling and proportionate justification.10
The aforementioned international cases reflect the broader dismissal of the blanket bans on prisoners’ democratic rights. Moreover, if the social construction of criminality is assessed, it is clear that disenfranchised prisoners are reduced from citizens to mere subjects. The denial of suffrage undermines the representation of inmates, negating their right to contribute to the democratic process. Statistics show that marginalized groups are overrepresented in Indian prisons, resulting in disparate impact, which reinforces systemic discrimination.11
It is time for India to rethink its electoral policies, reject the age-old argument of restoring the integrity of the democratic process to disenfranchise prisoners as blatantly exclusionary, and recognize the importance of the inclusion and civic participation of prisoners.
- The Hindu Bureau, 2024 Lok Sabha election to be held in 7 phases from April 19, results on June 4, THE HINDU (September 11, 2024) https://www.thehindu.com/elections/lok-sabha/2024-lok-sabha-and-assembly-poll-date-announcement-by-election-commission/article67953554.ece ↩︎
- INDIA CONST. art. § 325; The Representation of the People Act, 1951, § 62(5).
↩︎ - Howard League for Penal Reform, The Howard League Working Paper 20: A Review of the Evidence on the Impact of Imprisonment on Reoffending (2015), https://howardleague.org/wp-content/uploads/2016/04/HLWP_20_2015.pdf. ↩︎
- Peter Ramsay, Voters should not be in prison! The rights of prisoners in a democracy, 16 Critical Review of International Social and Political Philosophy 421 (2013). ↩︎
- Ankul Chandra Pradhan v. Union of India, AIR 1997 SUPREME COURT 2814. ↩︎
- Jeffrey Reiman, Liberal and Republican arguments against the disenfranchisement of felons, 24 Criminal Justice Ethics 3, 15 (2005). ↩︎
- The Representation of the People Act, 1951, § 8. ↩︎
- Hirst v. United Kingdom, (2005) ECHR 681. ↩︎
- Minister of Home Affairs v. NICRO, 2005 (3) SA 280 (CC). ↩︎
- Cormac Behan, Embracing and Resisting Prisoner Enfranchisement: A Comparative Analysis of the Republic of Ireland and the United Kingdom, 11 IRISH PROB. J. (Oct. 2014), https://core.ac.uk/download/pdf/42624015.pdf. ↩︎
- National Crime Records Bureau, Police Strength in India 2022 (2023), https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/psiyearwise2022/1701613297PSI2022ason01122023.pdf. ↩︎
