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“The right to vote is the right upon which all of our rights are leveraged- and without which none can be protected,” said Benjamin Todd Jealous. In India, convicted individuals, people under trials or in lawful custody are denied voting rights according to section 62(5) of the Representation of the People Act,1951. Most importantly, it leads to the ‘civil death’ of an individual which means an individual is not only convicted of a felony but also loses all privileges and fundamental rights as an individual. These people should be given the right to vote as denying them rights affect the democratic status of our country, and the removal of rights add to their pile of punishments.  

Right to vote is not a fundamental right but a statutory right which means that the legislation can determine those who are eligible to enjoy this right. (Preshti 2014). The punishment should be based on the felony one has committed. On the contrary, denial of voting rights does not look at the intensity of the crime or the sentence they have been given. Irrespective of the crime, a felon is debarred from voting. ‘Innocent until proven guilty’, this is nowhere followed in the law of felon disenfranchisement. A majority of people lose their voting rights for the time being because, an individual who is convicted, is under trial or is in the lawful custody of police is not allowed to vote, and a chance of proving their innocence is also not given. (Chopra 2016).

It is believed that if felons vote for our political leaders, our democracy will get criminalised. (Ewald and Rottnghaus 2014, 33) In section 8 of the Representation of People Act 1951 states that if a person is sentenced for more than two years, she/he is not allowed to contest elections. (Chopra 2016) However, there is no mention of length of a sentence when voting rights are concerned. They also argue that voting by criminals would interfere with the process and would lead to electoral fraud. Given that felons can contest elections from inside the jail and climb up the ladder of success in a political career in spite of having a criminal history, it’s unjustifiable to curb voting rights of a felon and to let them contest elections. More than 36% of MLAs and MPs have criminal history against them, yet they are eligible to contest elections. (Chopra 2016) It is not ‘criminalisation of politics’, it is ‘politicisation of criminals’.

Felon disenfranchisement, according to many, is a mandatory law to maintain the ‘purity of the ballot box’. (Mauer 2000). Society cannot just assume that the ballot box is pure in the first place. The purity of the ballot box is not determined by who votes, it’s determined by the intention of the people who are voting (Preshti 2014). Instead of assuming felons to be ‘polluting agents’, one should accept them as sincere voters who just intend to have a say in the politics of the country.

Felon Disenfranchisement affects the democratic setup of a country. When we hear the word democracy, the first thing that comes to our mind is ‘for the people, by the people and of the people’. Not only convicted felons, people under trials and under lawful custody are also not allowed to vote. The ‘Prison Statistics India, 2015’ published by the National Crime Records Bureau, says there were 2,82,076 undertrials and 1,34,168 convicts lodged across 1,401 prisons in the country as on December 31, 2015. (Chopra 2016) Approximately five lakh people were excluded from the voting process, and thus, questioning the democratic setup of India.

The Supreme Court has observed that a person is in prison because of his or her conduct and cannot claim equal rights as others who are not incarcerated. (Preshti 2014). This raises questions on the ideas of prison, as prisons are there to only reform a person. It’s not there to alienate them from the society. In a conservative society like India, being in prison is a significant stigma due to which prisoners are already excluded from the social life. Imprisonment is itself a punishment and curtailing the voting rights of an individual adds to the sentence which is unreasonable and inhumane.

It is inferable that felon disenfranchisement leads to alienation of inmates from the society. Inmates are excluded from the lawmaking process and have no stake in it. These rules are against the right of equality and right to life. Inmates are already living with the tag of a prisoner and snatching their voting rights make them non-existent for the society. (Preshti 2014) “Adult Franchise is the surest way of achieving the goals of justice, liberty, equality, brotherhood and dignity enshrined in the Preamble.” (Manza and Uggen 2004) ‘Universal’ Adult Franchise, by the name,suggests that it should apply to all the members of the society who are sound enough to vote should be excluded from enjoying this right.

 

References:

Ewald, Alec C., and Brandon Rottinghaus. Criminal Disenfranchisementin an International Perspective. New York: Cambridge University Press, 2014.

Manza, Jeff, and Christopher Uggen. "Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United States." Perspectives on Politics2, no. 3 (2004): 491-505

Mauer, Marc. "Felon Voting Disenfranchisement: A Growing Collateral Consequence of Mass Incarceration." Federal Sentencing Reporter12, no. 5 (2000): 248-51. doi:10.2307/20640279.

Chopra, Ritika. "Should Prisoners Be Allowed to Vote? Election Commission Panel to Seek Answer." The Indian Express. September 14, 2016. Accessed April 20, 2018. http://indianexpress.com/article/india/india-news-india/should-prisoners-be-allowed-to-vote-ec-panel-to-seek-answer-3029960/.

"Democracy and a Prisoner's Right To Vote." Preshti. December 09, 2014. Accessed April 20, 2018. http://alexis.co.in/preshti/democracy-and-a-prisoners-right-to-vote/.

Header Image Courtesy: http://wclcriminallawbrief.blogspot.com/2012/11/felony-disenfranchisement.html 

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Written By Aakansha Wadhwani

Aspiring Lawyer.

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