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. Another argument is that those who have broken law are punished with denial of rights including right to vote, apart from being confined in a prison.

When the right to vote was being argued against in a Canadian court in the case of in Sauve v Canada, following reasons were given to deny prisoners' right to vote (Mbodla 2002):

(a) to affirm and maintain the sanctity of the franchise in our democracy;

(b) to preserve the integrity of the voting process; and

Article 21 of Universal Declaration of Human Rights (UDHR) provides that everyone has the right to take part in the government of their country, directly or through freely chosen representatives. Further, International Covenant on Civil and Political Rights (ICCPR)’s Article 25 states vividly that

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [i.e race, colour, 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, directly or through freely chosen representatives; ISSN (Online) - 2349-8846

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

The repeated stress on “everyone” and vivid description of possible distinctions, that is, race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, clearly indicate that the institutions considered to be guiding the countries on human rights hold the right to vote as almost a natural right that cannot be taken away by governments or the society.

Similarly, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and People’s Rights recognise everyone’s right to freely participate in election of governments (Adeb 2013).

In addition, the Standard Minimum Rules for the Treatment of Prisoners and The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, stress that prisoners should be treated with inherent dignity, that imprisonment is for their reform, rehabilitation and reintegration to the society and hence prisoners should continue to participate in sociopolitical activities. Why Should India Give Voting Rights to Prisoners?

The arguments against prisoners’ right to vote can be dismissed on two major grounds. First, confinement as a result of imprisonment in itself is a punishment and no additional punishment can be inflicted on the person, and second the purpose of prisons is not “punishment” in its physical sense, but denial of liberty in order to reform, and prepare the prisoner to rehabilitate and reintegrate into the society.

The United Nations’ Standard Minimum Rules for Treatment of Prisoners, also known as the Nelson Mandela Rules, in 1955 had already defined the purpose of imprisonment in Articles 57 and 58, and what treatment must 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 deprivative 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 ISSN (Online) - 2349-8846

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.”

Hence, by denying a prisoner the right to vote, a country is in violation of all the above 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 additional punishment may aggravate the suffering, and harms the dignity of the prisoner as a human being and a citizen. As illustrated in Article 60 and 61, such a deprivation is not required as part of our penal system because the aim of imprisonment is to continue a prisoner’s interest in civil life inculcating a sense of responsibility towards his eventual return to the society as a “law-abiding” 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." ISSN (Online) - 2349-8846

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 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 comprising of white men for long were denying the right to vote to various sections of the society on the basis of gender, race, colour and property. This history is continuing today when voting rights of another section of society, that is, prisoners and/or lawbreakers, is being denied by the people who are making the law. An empirical research study looking at voting patterns emerging from three elections in Ireland in the years 2008, 2009 and 2011 found that prisoners do not vote differently from the rest of the population and levels of electoral participation is lower due to non-registration as one major reason, but there is a high turnout among those registered to vote. Interviews with these prisoners, during the same research study, revealed that prisoners welcomed the act of their enfranchisement, and also hoped that more such acts of their engagement with the society including more attention from the political class will be undertaken by the government (Behan 2014).

A very clear example of this abuse of power has been witnessed in the US when Al Gore could have won over 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 criticised for its criminal disenfranchisement policy and history of racial discrimination (Behan and Donnell 2008).

South Africa has also recognised the relation of voting rights with exclusion of certain sections 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.” ISSN (Online) - 2349-8846

(Behan and Donnell 2008)

India’s criminal justice system is also tainted with its record of processing and eventually imprisoning more numbers of Dalits, Adivasis, Muslims and the economically poor (Wire 2019). Denial of voting rights to prisoners is denying valuable vote share of these particular communities. Moreover, India is one of those very few countries who have been denying this right to its undertrial population as well. And, in India’s prison population, a majority are undertrials. (Deccan Herald 2018). Voting Rights for Prisoners: The Way Ahead

Elections encourage us to speak about our disappointments and problems with the state of affairs in the country, while also taking the opportunity to campaign for our demands. In each of our policies, the focus should not just be on prevention, deterrence and punishment of crime but more importantly also on the conditions generating crime and reintegration of the lawbreaker into the society. Denial of voting rights pushes the prisoner further away from the society. A citizen without a vote in a democracy has no existence. This is evident in Indian polity as well, where election manifestos barely mention any promises for the betterment of prison conditions or legislation. Prisoners are dependent on others to become their voice and raise issues on their behalf. Hence, one direct impact which prisoners’ right to vote will bring is the attention from policymakers regarding needs of prisoners. It might still be a small population as compared to the size of other communities, even then a moral responsibility would stand for vote seekers and subsequent winners of power to be responsive towards demands of the prisoners.

Another important distinction to keep in mind is that laws are made and changed with different governments, while rights have been enshrined as fundamental. A crime today, might be legal tomorrow. Hence, a right as fundamental as the right to vote, should not be dependent on the status of imprisonment or conviction. The words of a South African judge (Mbodla 2002) beautifully remind us of the important 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. (August v Electoral Commission, CCT 08/99, 1999)

References:

Abebe, Adem Kassie (2013): "In Pursuit of Universal Suﬀrage: The Right of Prisoners in Africa ISSN (Online) - 2349-8846

to Vote," The Comparative and International Law Journal of Southern Africa, Vol 46, No 3, November, pp 410–46, https://www.jstor.org/stable/23644811.

Australian Electoral Commission: https://www.aec.gov.au/Enrolling_to_vote/Special_Category/Prisoners.htm.

BBC (2012): "Prisoner Votes by European Country," 22 November, https://www.bbc.com/news/uk-20447504.

Behan and Donnell (2008): "Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility," The British Journal of Criminology, Vol 48, No 3, MAY, pp 319–36, https://www.jstor.org/stable/23639089.

Behan, Cormac (2015): Citizen Convicts: Prisoners, Politics and the Vote, Manchester University Press, United States.

Chui (2007): "Prisoners' Right to Vote in Hong Kong: A Human Rights Perspective," Asian Journal of Social Science, Vol 35, No 2, pp 179–94, https://www.jstor.org/stable/23654497.

Deccan Herald (2018): "Undertrial Population in Prisons on Rise" 8 January, https://www.deccanherald.com/content/652556/undertrial-population-prison....

Economic Times (2019): "Indian Voter Population is 900 Million," 10 March, http://economictimes.indiatimes.com/articleshow/68345392.cms?utm_source=....

Election Commission of India (2019): "Handbook for Observers," https://www.eci.gov.in/files/file/9120-handbook-for-observers-march-2019/

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IWOC (2018): Incarcerated Workers Organizing Committee, https://incarceratedworkers.org/campaigns/prison-strike-2018.

JPost (2015): "Prisoners of the Election: Thousands of Inmates Line Up to Vote At Facilities Across Israel," 17 March, https://www.jpost.com/Israel-Elections/Prisoners-of-the-election-Thousan....

Kirshner (2003): "The International Status of the Right to Vote" Democracy Coalition Project, Open Society Institute, http://archive.fairvote.org/media/rtv/kirshner.pdf.

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Mbodla, Ntusi (2002): "Should Prisoners Have a Right to Vote?," Journal of African Law, Vol 46, No 1, pp 92–102, http://www.jstor.org/stable/4141323.

NCRB (2016): "Prisons Statistics India - 2016," http://ncrb.gov.in/.

Penal Reform International (2016): "The Right of Prisoners to Vote: a Global Overview"

Pilkington, Ed (2018): "US Inmates Mark End of Prison Strike with Push to Regain Voting Rights, Guardian, 9 September, https://www.theguardian.com/us-news/2018/sep/09/us-prison-strike-latest-....

Prison Reform Trust (2011): "Barred From Voting: The Right to Vote for Sentenced Prisoners," http://www.prisonreformtrust.org.uk/Portals/0/Documents/Votesbrieﬁngfeb....

Section 93 of Elections Act 2017 Government of Pakistan, http://www.na.gov.pk/uploads/documents/1506961151_781.pdf. ISSN (Online) - 2349-8846

Wire (2019): "One in Every Three Under-Trial Prisoners in India Is Either SC or ST: Study," 20 January, https://thewire.in/rights/one-in-every-three-under-trial-prisoners-in-in....

Cases Cited

Anukul Chandra Pradhan v Union of India AIR 1997 SC 2814.

Charles Sobraj v Superintendent Central Jail, Tihar, New Delhi AIR 1978 SC 1514.