The question of voting rights to prisoners has been in debate quite a few times over the years and still is. Is it a violation of their rights as citizens or just a way to avoid malpractices in elections? This is a concept in debate for a long time.
In a democratic set-up voting is considered as a ‘key-power’ general masses hold, it implies their right of expressing their choice to elect the government. Around the world, governments struggle to meet the challenge of the Universal Declaration related to free and fair elections.
And even then this fundamental right hasn’t widely executed the way it is recognized. Millions of individuals around the world still are either denied or go unaccounted to practice their right.
In 2015, PRI commissioned eight international law firms which was facilitated by Advocates for International Development (A4ID) to review the extent of disenfranchisement of detained persons in dozens of jurisdictions worldwide, and, where applicable, the conditions under which voting rights were restricted.
In 45 per cent of the 66 countries surveyed, conviction to imprisonment is automatically followed by disenfranchisement. Most countries, although not all permit pre-trial detainees to vote in principle. In practice, however, even where prisoners are entitled to vote, participation is very low.
Law regarding prisoners’ voting rights in India:
In India, prisoners aren’t given a right to vote, it is been clearly stated in Section 62(5) of the Representation of People’s 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.
The 1948 Universal Declaration of Human Rights (UDHR), which is the foundation of human rights treaties of the United Nations states- in Article 21 that everyone can vote. This includes people in prison.
Later, this was expressed legally in Article 25 of the International Covenant on Civil and Political Rights (ICCPR) which almost all countries support.
Countries where prisoners are given voting rights:
The exclusion from voting of people otherwise eligible to vote due to conviction of a criminal offense is usually restricted to the more serious class of crimes. In some common law jurisdictions, those are felonies, hence the term FELONY DISENFRANCHISEMENT was coined.
Felony disenfranchisement is one among the collateral consequences of criminal conviction and the loss of rights due to conviction for criminal offense.
Some countries which allow prisoners to vote are: Albania, Austria, Bangladesh, Bosnia, Canada, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Iceland, Iran, Ireland, Israel, Japan, Kenya, Latvia, Lithuania, Macedonia, Montenegro, Netherlands, Norway, Pakistan, Peru, Poland, Romania, Serbia, Slovenia, South Africa, South Sudan, Spain, Sweden, Switzerland, Ukraine and Zimbabwe.
One, very famous case dealt by UK back in 2005, is the case of Hirst v United Kingdom. It is a European Court of Human Rights case, where the court ruled that a blanket ban on British prisoners exercising the right to vote is contrary to the European Convention on Human Rights.
The court did not state that all prisoners should be given voting rights. Rather, it held that if the franchise was to be removed, then the measure needed to be compatible with Article 3 of the First Protocol of the European Convention on Human Rights, thus putting the onus upon the UK to justify its departure from the principle of universal suffrage.
The facts of the case were that- John Hirst was a post-tariff prisoner, who was then serving a sentence for manslaughter and was prevented from voting by section 3 of the Representation of the People Act 1983, which prohibits convicted prisoners from voting during their incarceration in a penal institution. In 2001, he brought a case to the High Court, but the case was dismissed. He lodged an appeal to the European Court of Human Rights.
The court ruled unanimously that there had been a violation of Hirst’s human right under Article 3 of the First Protocol. The UK lodged an appeal to the Grand Chamber and on 6th October 2005 it found in favour of Hirst by a majority of twelve to five. The Court found that the restriction of prisoners’ voting rights violated the above mentioned protocol.
The question of Felony disenfranchisement was raised in India in the month of March 2019, when the students’ petition challenged the constitutional validity of section 62(5) of The Representation of the People Act, 1951, which has been stated above.
The Delhi high court sought the election commission of India’s stand on the said petition which was filed by three law students from the northern Indian state of Uttar Pradesh, which could prove to be a game changer in Indian civil rights history.
There are a million questions raised when debating about a citizen’s right to vote. In the end, it all comes down to 2 things: Betterment of country or the question of citizens’ equality.
It can be answered by taking one step at a time, from small responsibilities given to the prisoners then going higher on the ladder. It’s only with experimentation that results can be availed.