Prisoners' Right to Vote (Mbodla 2002)

ISSN (Online) - 2349-8846 Prisoners’ Right to Vote: Citizen without a Vote in a Democracy Has No Existence BALJEET KAUR Baljeet Kaur ([email protected]) is a researcher at the Quill Foundation. Vol. 54, Issue No. 30, 27 Jul, 2019 Denying prisoners their right to vote undermines law and policy that is meant to rehabilitate and integrate prisoners. This is the second part of a three-part series on Prisoners' Rights in India. You can read the Introduction here and read part one: "Prisoners’ Right to Write: Why SC Rulings Should be Taken Seriously by Prison Authorities" here. Every reasonable effort should be made to enfranchise citizens. Conversely, every care should be taken to guard against disenfranchisement. (Judge Cory ISSN (Online) - 2349-8846 J, South Africa in Mbodla 2002) When around 90 crore Indian citizens (Economic Times 2019) were set to vote in the 2019 Lok Sabha elections, approximately four lakh Indian citizens (NCRB 2016) were not given a chance to vote. These citizens are prisoners, denied their right to franchise based on Section 62(5) of the Representation of Peoples Act, 1951: No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. India, which is often referred to as the world’s “largest democracy,” has been denying the most fundamental right of suffrage to its four lakh eligible voters. India is one of the very few countries to have a blanket ban on all prisoners. Such a ban affects detainees, undertrials and convicts alike. Only those who are out on bail can vote (Election Commission of India 2019). This issue has not been discussed too often in the last 70 years. In 1997, the Supreme Court of India (SC) (AIR 1997 SC 2814) while rejecting the petition seeking the right to vote for prisoners provided some reasons for why such a ban was in place: (i) Resource crunch as permitting every person in prison also to vote would require deployment of a much larger police force and greater security arrangements. (ii) A person who is in prison as a result of his own conduct cannot claim equal freedom. (iii) To keep persons with criminal background away from the election scene. However, many of our politicians, ironically, have criminal cases registered against them (Beniwal and Kumaresan 2019). In 2018, a nation-wide strike was organised by prisoners in the United States (US), and one of their demands was they are given the right to vote (IWOC 2018). “The voting rights of all confined citizens serving prison sentences, pretrial detainees, and so called 'ex-felons' must be counted. Representation is demanded. All voices ISSN (Online) - 2349-8846 count.” One of the prisoners was quoted saying: “I will pay taxes but I won’t be able to vote…It lets me know that I’m not truly a citizen ... I will have no say in the political process or the direction of the nation” (Pilkington 2018). In April 2019 in India, three law students filed a public interest litigation (PIL) in the SC, seeking right to vote for the prisoners and an amendment to the Representation of Peoples Act, 1951. While this case will take its course in the coming months, it is important for us to reimagine the future of the criminal justice system in our country. Do we want a retributive system, where citizens are condemned and forgotten, or should we aim for a reformative system which aims to improve the structure of society, nurturing the law-breakers and integrate them back to the society? Right to vote for prisoners is one step towards shaping our criminal justice system into a caring, and reform-oriented institution, one that abides by the universally accepted human rights values. Prisoners’ Right to Vote: Trends across the World While there is no official collection of data that indicates a clear pattern of the right to vote for prisoners of all the countries in the world, a report in the BBC (2012) lists 18 European countries which have given full voting rights to all prisoners. In addition, Slovenia also gives the right to all its prisoners to vote (Liberty 2016). Ireland’s case is exemplary on this issue. The Irish government, in 2006, gave all its prisoners the right to vote without any public outcry demanding for it, without any media controversy, or judicial decision. Ireland adhered to its human rights commitments learning through the best international civil rights practices of providing right to vote to all citizens including prisoners (Behan 2014). Countries such as Iran (Iran Data Portaland), Israel (JPost 2015) and Pakistan (Elections Act 2017) also provide rights to its prisoners to vote in elections. In the African Continent, South Africa, Ghana, Kenya and Botswana also provide their prisoners with the right to vote in elections (Abebe 2013). In the majority of jurisdictions surveyed in another study, undertrials are allowed to vote but there would be a blanket ban on convicted prisoners, for example, in the United Kingdom (UK), New Zealand (Penal Reform International 2016). In others, there are limitations related to severity or type of offence (Germany bars those convicted of terrorism charges), number of years sentenced (Australia, where those sentenced for three years minimum cannot vote (Australian Electoral Commission). In countries like France, there is no default ban on prisoners to vote in the elections, rather the court may decide to disallow any convict on a case by case basis. In some countries like Italy and some states of the US, convicts can lose the right to vote even after their release (BBC 2012). Why Countries Restrict Prisoners’ Right to Vote In most countries, the restrictions on prisoners' voting rights are limited to “convicts,” while undertrials and detainees are eligible to vote as any other citizen. Countries around the ISSN (Online) - 2349-8846 world have a consensus that undertrial and detained prisoners who have not yet been proven to have broken any law as per the court, are to be treated innocent and hence eligible to their rights. Extending this right to those prisoners who have been found guilty of breaking the law is what is being resisted by various countries in different degrees. Cormac Behan (2015) in his book, Citizen Convicts: Prisoners, Politics and the Vote has summarised the arguments for and against the prisoners right to vote in the following manner: Arguments Against Arguments For Civil death should be part of punishment Civil death is outdated Prisoners have broken the social contract and have voluntarily put themselves outside the Social contract cannot be negotiated away social order Undermines the democratic polity by denying Preserve the purity of the ballot box the vote to a section of the population Majority of the people are against allowing Elected should not be allowed to decide the prisoners to vote electorate Government has an obligation to those who Allowing convicts to vote will encourage obey laws to punish those who break laws respect for law To disallow those who have broken laws to Convicts will be less inclined to obey laws that engage in the political process shows how they have had no role in deciding upon much respect society has for laws Powerful moral symbol from society that the Symbolic statement to the convict that they convict’s behaviour is unacceptable are acceptable Allowing prisoners to vote will be a lesson in Punishment can be used to form character civic education It will act as deterrent It is rehabilitative Expressive punishment and moral Retribution should have no place in modern condemnation penalty Disenfranchisement is exclusionary Enfranchisement is inclusionary Source: Citizen Convicts: Prisoners, Politics and the Vote (Behan 2015) The debate against prisoners’ right to vote originated from the concept of “civil death.” As per this concept, a person pronounced as an offender, infamous or outlaw, is denied the general rights enjoyed by citizens, such as the right to freedom of expression, assembly, right to possess or inherit property, right to file a case or appear in court, opportunities to serve in army among others. Most of these restrictions do not exist anymore, except for voting rights (Behan 2014). The strongest reasoning against prisoners’ voting rights is that a lawbreaker has breached the “social contract.” The argument is based on the social contract theory according to which citizens in a society agree to follow and be governed by a set of rules. In modern democracies, the rule of law is the primary instrument of the social contract. So, when a lawbreaker voluntarily breaks the law, he or she chooses to go outside the society. Therefore, he or she should not be given the rights which a law-abiding citizen ISSN (Online) - 2349-8846 enjoys. A lawbreaker has broken the trust, and hence should be excluded from the governance. Denial of voting rights will give a signal of disapproval from the society and will act as deterrence. The UK Government argued the following in the case of Hirst v the UK in European Court of Human Rights (Behan 2014): Those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country. These arguments are further stretched to say that those who have broken the law and trust are corrupt and a process in a democracy as important as of voting, it should not be allowed to get impure or contaminated by their involvement.

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